미국 수정헌법 제1조와 기자의 증언거부권에 관한 연구

A shield law is law that gives reporters protection against being forced to disclose confidential information or sources in state court. There is no federal shield law and state shield laws vary in scope. In general, however, a shield law aims to provide the classic protection of, “a reporter cannot be forced to reveal his or her source” law. Thus, a shield law provides a privilege to a reporter pursuant to which the reporter cannot be forced by subpoena or other court order to testify about information contained in a news story and/or the source of that information. Several shield laws additionally provide protection for the reporter even if the source or information is revealed during the dissemination of the news story, that is whether or not the source or information is confidential. Depending on the jurisdiction, the privilege may be total or qualified, and it may also apply to other persons involved in the news-gathering and dissemination process as well, such as an editor or a publisher. Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his case by a vote of 5-4. Nonetheless this case is cited for the rule that in federal courts, a reporter may not avoid testifying in a criminal grand jury. It remains the only time the Supreme Court has considered the use of reporters' privilege. The Court ruled against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court “to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.” Justice White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that “from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished.” Justice White did not overlook the importance of a free press, however, and established a test for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.