When the Supreme Court first grappled with prior restraints and the rights of reporters to attend criminal trials, it looked to history and the societal functions of the media in establishing presumptions that favored the press. This Article follows a similar path. Part II sketches the role of leaks in governance between the adoption of the Constitution and World War II to underscore the integral role leaks have played in the nation's political communication. Part III shows that the general law of journalists' confidentiality before and after Branzburg developed with little regard for the distinct institutional contributions of leaks. Part IV provides two perspectives on leaks that underscore their centrality in modern governance. When considered together, these perspectives suggest guidelines for courts as they weigh the value of different types of leaks. Finally, Part V recommends how the legal principles currently regulating journalists' confidentiality can be adjusted slightly to accommodate the contributions of political leaks to governance.
Richard B. Kielbowicz,
The Role of News Leaks in Governance and the Law of Journalists' Confidentiality, 1795-2005,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol43/iss3/2