Rethinking reporter's privilege.

A. Anonymous-Speech Doctrine

In articulating the doctrinal contours of the right to speak anonymously, the Supreme Court has stressed the First Amendment value of ensuring a flow of information to the public. (186) This emphasis makes clear that the anonymous-speech right exists, at least in part, to meet the same important societal ends that the post-Branzburg reporter's privilege seeks to meet. (187) That is, both approaches recognize and are driven by what might be called "public-information" values. But the anonymous-speech approach also recognizes and is driven by what might be called "individual-liberty" values. An investigation of the development and operation of the anonymous-speech doctrine plainly demonstrates the wider scope of First Amendment values served by the anonymous-speech right--and the clearer position that such a right occupies within the First Amendment framework.

Public-information values have been carefully enunciated by the Court in anonymous-speech cases. When the Court first set forth the anonymous-speech doctrine in Talley, the historical argument in support of anonymous-speech protection was centered on a free-flow-of-information premise: the First Amendment must protect anonymous distributions of literature in order to ensure that certain literature will in fact be distributed. (188) The petitioner in Talley was a civil fights activist who had distributed unsigned handbills in Los Angeles calling for a boycott of merchants that he claimed sold goods manufactured by companies that discriminated against minorities in hiring. (189) When charged under a city ordinance forbidding the distribution of anonymous handbills, (190) Talley challenged the law as an unconstitutional abridgement of the freedom of speech. (191)

Writing for a six-three majority, Justice Black agreed that the ordinance was void on its face and stressed the importance of anonymous speech in ensuring dialogue on "public matters of importance." (192) Explaining that the Court had long recognized that "identification and fear of reprisal might deter perfectly peaceful discussions," (193) the Talley Court stated that there could "be no doubt that [the] identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression." (194) Setting forth numerous examples of ways in which anonymous communications "played an important role in the progress of mankind" (195)--including the publication of the constitutionally foundational Federalist Papers under fictitious names (196)--the Court observed, "It is plain that anonymity has sometimes been assumed for the most constructive purposes." (197)

Thirty-five years later in McIntyre v. Ohio Elections Commission, (198) the Court reaffirmed Talley's vibrant protection of anonymous speech when it declared unconstitutional (199) a law prohibiting the distribution of anonymous campaign literature. (200) The Court held that "[a]n author generally is free to decide whether or not to disclose his or her true identity." (201) The McIntyre Court found that a citizen who distributed handbills at public meetings opposing a school tax referendum and signed them "CONCERNED PARENTS AND TAX PAYERS" rather than with her own name, (202) had a constitutional fight to do so, notwithstanding the state's countervailing interests in helping voters assess validity and reduce fraud. (203) The provision of the Ohio Code forbidding anonymous speech was struck as unconstitutional, (204) with the Court again insisting that under the First Amendment, speaking anonymously "is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." (205) It underscored the public-information values of anonymous speech by citing the long tradition of influential authors writing anonymously or pseudonymously--including Mark Twain, O. Henry, Benjamin Franklin, Voltaire, George Eliot, and Charles Dickens (206)--and by noting the importance of ensuring that information is not self-censored when speakers fear "economic or official retaliation," "social ostracism," or loss of privacy. (207)

Thus, the Court squarely recognized that protection of anonymous speech advances the First Amendment's public-information goals of encouraging community-serving information and increasing the contributions willingly made to the marketplace of ideas. (208) First Amendment scholars and jurists have noted that removing barriers to the flow of information has the large-scale societal benefits of enriching discourse (209) and enhancing democratic self-governance. (210) It is the way that the First Amendment serves the many by protecting the one.

Importantly, though, the case law makes clear that this set of public-information values represents only half of the dual purposes served by protecting anonymity in communications. Constitutional protection of anonymous speech also advances the First Amendment's individual-liberty goals, facilitating the overarching "purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society." (211) The freedom to speak anonymously, in other words, is designed to serve the one even when it does not serve the many, by acting as "a shield from the tyranny of the majority." (212) It appears that the Court's motivation for protecting anonymous speech has thus gone beyond eliminating obstacles to individual communication of publicly useful information, and has additionally embraced the self-fulfillment and individual-autonomy goals of the First Amendment (213) "by enabling individuals to explore new ideas, new means of expression, and even new identities" and by allowing some speakers simply to "derive internal satisfaction from not having their true identity revealed." (214) This protection allows a speaker to ensure that readers will not prejudge her message simply because they like or dislike its proponent, (215) and thus works a direct, individual-liberty benefit upon the speaker herself.

In recognizing these ways in which anonymous speech is valuable in preserving individual liberty of expression, the McIntyre Court gave an additional doctrinal justification for finding government interference with anonymity unconstitutional: it is strongly analogous to content control. (216) Decades of First Amendment jurisprudence have firmly established that content-based regulations of speech ordinarily receive strict scrutiny. (217) Unless the government can prove that a content-based regulation on speech is the least restrictive means of meeting a compelling governmental interest, the regulation will fail constitutional review. (218)

Writing for the Court in McIntyre, Justice Stevens noted that governmental demands for a speaker's name run entirely afoul of this foundational First Amendment command in both a theoretical and a practical way. First, identification requirements essentially force the speaker to reveal "the content of her thoughts on a controversial issue," (219) thus forcing the conveyance of content that the speaker did not wish to convey and conflicting with the essential theoretical underpinnings of the prohibition on content-based regulation. Second, and more concretely, such requirements literally force the inclusion of additional text--the speaker's name--when the speaker had made the editorial judgment to exclude it. (220) "Accordingly," Justice Stevens wrote, "an author's decision to remain anonymous, like other decisions concerning the omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." (221) McIntyre thus reinforced the individual-liberty values at stake in a decision to speak anonymously and cemented the right to speak anonymously as a logical, even necessary, component of the most foundational of First Amendment doctrines.

Although Talley and McIntyre are widely regarded as the core cases on the central question of the anonymous-speech right, the Court has recognized variations of the right in a number of other contexts, including cases in which groups or their members were required to disclose their memberships (222) and cases in which speakers were required to obtain named permits before engaging in their communicative activity or were required to wear identification badges while engaging in that activity. (223) The Court has consistently asserted the importance of the same anonymity values addressed in the core cases. (224) Most recently, in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, the Court reiterated the central tenets of the anonymous-speech doctrine in the context of an ordinance that required an individual engaging in door-to-door advocacy to display a permit showing the individual's name. (225) The Court criticized the permit obligation for forcing the "surrender of [the speaker's] anonymity" and highlighted the privacy, source-bias, and retaliation concerns that have been recognized in other anonymous-speech cases. (226) Despite the fact that a door-to-door speaker would of course reveal her physical appearance to the homeowner and thus never preserve total anonymity, the Watchtower Court spoke in strong terms about the right not to share one's name or identity and about the potential chilling effect of the ordinance on those who may wish to canvass anonymously for unpopular causes. (227) Importantly, then, even in instances in which total anonymity is not guaranteed, the Court has protected the right to speak without connecting one's name to one's message.

B. Potential Perils of Anonymous Speech

To be sure, this vibrant defense of anonymous communication is not cost free. As the Court in each of the above cases acknowledged, (228) and as scholars have continued to explore, (229) strong anonymity protection creates the risk that a speaker will shield her identity for less-than-noble purposes (230) or that the absence of attribution will lead to audience confusion, (231) "serve as a cloak for the progenitor of irresponsible ideas," (232) or enable outfight lies. (233)

Obviously, removing an attribution of the source removes a sometimes-useful tool for evaluating the message. (234) Listeners and readers "rely on author identity to reduce the search costs involved in sorting and interpreting the constant barrage of messages they receive," (235) and requiring identification of a source might well "advance the search for truth by permitting a more critical evaluation of facts, figures, and arguments presented." (236) Without this attribution, audiences are left with the communicative equivalent of a generic product, unable to use brand name as a proxy for qualitative judgments. (237) Indeed, speakers with poor reputations may have every incentive to hide their identities. (238) Likewise, anonymity may be the path chosen by those who wish to spread falsity with impunity, "settle a personal score," "sow the seeds of discontent, or control public opinion." (239) Anonymity can "shield speakers from liability for a variety of torts, including defamation, invasion of privacy, fraud, copyright infringement, and trade secret misappropriation." (240) It can impede important investigations in civil and criminal matters. (241)

Thus, although "in general, our society accords greater weight to the value of free speech than to the dangers of its misuse," (242) for some or all of the reasons enumerated above, the Court has in some circumstances found that the government has in fact demonstrated a sufficiently important governmental interest in revealing the speaker's name. (243) Indeed, even in cases that most broadly defined and most stringently applied the anonymous-speech right, the Court has kept open the possibility that compelling counterinterests may be shown in other cases. (244) The McIntyre Court noted that "the right to remain anonymous may be abused when it shields fraudulent conduct." (245) It agreed that "[t]he state interest in preventing fraud and libel stands on a different footing." (246) The Watchtower Court highlighted the possible interests of "prevention of fraud," "prevention of crime," and protection of audience privacy (247) as interests that, although not demonstrated in that case, might suffice in another. And it explicitly stated that governmental limitations on anonymity "may well be justified ... by the special state interest in protecting the integrity of a ballot-initiative process or by the interest in preventing fraudulent commercial transactions." (248)

Most notably, perhaps, in the distinctive setting of required disclosure of the identities of monetary contributors to political campaigns, (249) the Court repeatedly has upheld restrictions on anonymous speech. In Buckley v. Valeo, appellants challenged a federal statute requiring disclosure of the identities of individuals making contributions to political campaigns that exceeded certain monetary thresholds. (250) The Court held that the interests of preventing "corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions" (251) sufficed to trump anonymous-speech rights, (252) and it determined that the campaign disclosure requirements directly served those interests and "appear[ed] to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist." (253) Likewise, in McConnell v. Federal Election Commission, the Court addressed a challenge to the Bipartisan Campaign Reform Act ("BCRA"). (254) Relying on Buckley, the Court upheld the requirement that purchasers of television advertisements advocating the election or defeat of a candidate for federal office disclose their identities, given the very strong interests in "providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions." (255) Though Citizens United v. Federal Election Commission overruled many aspects of McConnell, it is significant that it did not invalidate the disclosure requirements of BCRA. (256)

Although scholars have criticized this isolated line of cases as inconsistent with the larger anonymous-speech doctrine (257)--and the debate continues as to whether constitutional values are in fact best served by forcing disclosure of contributors' identities (258)--it is notable that the Court in each of these cases continued to explicitly recognize the strong right of anonymous speech (259) and subjected limitations on such speech to heightened, "exacting scrutiny." (260)

All told, given the great value of anonymous speech not only to the free flow of public information but also to the individual-liberty interests served by the First Amendment, and given the content-based nature of any governmental effort to impede this anonymity, the Court has consistently recognized the right to speak anonymously as a fundamental constitutional right. In some settings, the government will be able to overcome the high constitutional barrier to unmasking such a speaker, but the Court has nevertheless recognized a foundational First Amendment protection for the citizen who chooses to "speak her mind, but sometimes not her name." (261)

III. APPLYING THE DOCTRINE TO CONFIDENTIAL NEWS SOURCES

Utilizing the anonymous-speech framework as the analytical structure for assessing the fights implicated in a confidential-source situation is both theoretically more coherent and practically more workable than the current post-Branzburg framework. Making this shift in lenses--from a focus on the reporter and her newsgathering right to a focus on the source and her right to speak anonymously--would be entirely consistent with the major premises and objectives of the Court's anonymous-speech cases and would lack the drawbacks of the attractive-in-theory-but-difficult-in-practice post-Branzburg approach. This Part describes each of these benefits of the proposed shift. It discusses how the public-information values, including the newsgathering function, could continue to be defended under this approach, but it also highlights how housing the inquiry in the anonymous-speech rubric better positions the Court to consider additional individual-liberty values recognized by and enforced through the Speech Clause. Finally, it demonstrates the workability of the approach by discussing a similar application of the framework by courts in recent decisions dealing with the limited but closely analogous setting of anonymous online comments.

A. Utilizing the Anonymous-Speech Doctrine in a Confidential-Source Situation

A confidential source who does not wish to have her name revealed is analytically indistinguishable from any other author, writer, or speaker who wishes to convey information anonymously. Like the leafleteer in Talley who wanted the consuming public to know that merchants were selling goods produced through discriminatory labor practices (262) but did not want that public to know that he was the source of the message, or like the concerned taxpayer in McIntyre who wanted to present arguments against the tax referendum but did not want those statements linked to her by name, (263) a confidential source offers information that she wishes to make public without attribution to her own identity for any number of reasons that the Court has acknowledged as valid. (264) As such, the source should be entitled to protection under the anonymous-speech doctrine for statements made to a reporter in confidence. (265)

As a purely technical matter, of course, the anonymous source has not kept herself totally unidentified. She has, in most instances, made herself known to the reporter for whom she has agreed to act as a confidential source. (266) But because this communication occurs in a context in which confidentiality is demanded, guaranteed, and fully expected, it is in no sense an actual, public identification. (267) Indeed, the dynamic that takes place when a confidential source approaches a reporter with information that she wishes to share anonymously is best viewed as the same as any other anonymous speaker's selection of the mode of communication that she will use to distribute her message without attribution. The reporter and the newspaper are merely the vehicles by which the anonymous message will be distributed--the functional equivalents of the unsigned leaflet or handbill. Recognizing that the anonymous-speech rights of this speaker are equivalent to the rights of anonymous speakers in those other contexts comports with the Court's view of the press as an agent of public information (268) and with the basic First Amendment principle that a speaker is free to choose not only the content of her message but also the manner by which she shares it. (269) Indeed, if the flow of information to the public is a major value underlying the anonymous-speech right, as the Court has repeatedly suggested is the case, (270) the anonymous speaker who selects a reporter and the associated media outlet as the vehicles for her anonymous speech may even more closely align with these doctrinal moorings than the handbill and leaflet distributors, whose cases created the doctrinal foundation. Although the Court has wisely avoided making a speaker's level of protection contingent on a showing of any specified degree of actual public-information value, it is nevertheless telling that one's audience is likely to be significantly enhanced when the chosen vehicle is a reporter rather than an anonymous handbill or leaflet.

Using the anonymous-speech rubric to decide questions arising out of the confidential-source situation would reduce or eliminate many of the most troublesome complexities that currently vex the post-Branzburg, reporter-based rubric. An investigation of the anonymous-speech rights of a confidential source would pose no definitional problems because the approach, unlike that of Branzburg, does not rise and fall on the nature of the speaker, the nature of the audience, or the value of the information communicated. The Court has drawn none of these distinctions in its anonymous-speech cases, instead posing as the threshold questions only whether there was a speaker who wished to convey a message without attribution and whether governmental interference hindered this constitutionally protected form of communication. (271)

Nor would an anonymous-speech approach mire the inquiry in impossible investigations of necessity and degree as the post-Branzburg approach does. To be sure, both approaches are animated at least in part by the same sets of concerns--the risk of retaliation against the speaker, the desire to avoid source bias, the need to protect speaker privacy (272)--and by the understanding that, in a system in which the government compels speaker attribution, people who have these concerns will self-censor speech that otherwise would freely flow. (273) The important difference is that Branzburg, which focuses exclusively on the newsgathering right of the reporter and the public-information values to be served by that process, turns on the existence of this chilling effect and the concomitant interruption to the flow of news. (274) Conversely, under the anonymous-speech doctrine, the Court has indicated that the elimination of these barriers to communication and information flow is an aspiration to be served by protecting anonymous speech but has not described it as the guiding justification for the protection. Avoiding the deterrence of communication and the chilling of speech is an important First Amendment aim, but the Court has not suggested, outside the unique campaign finance context, that only speech that would genuinely be deterred in the absence of anonymity protection is deserving of this protection. (275) The individual liberty to choose one's own message (276) and to be free from a government dictate as to the content of one's communication, including the attribution of one's authorship, (277) is a foundational First Amendment principle that requires no demonstration of ill effect or empirical showing of the creation of detrimental incentives. At least in cases of direct bans on anonymity, the Court has found a deprivation of the anonymous-speech right to be the functional equivalent of content control (278) that receives strict scrutiny, and thus, unless the government can demonstrate that such a limitation is the least restrictive means of meeting a compelling governmental interest, (279) it will fail constitutional review. (280)

Finally, and importantly, unlike the moving doctrinal target of the post-Branzburg reporter's privilege--which has been embraced to varying degrees and with varying consistencies in different circuits and different contexts, and which remains open to serious question and criticism about its proper scope and application (281)--a focus on an underlying fundamental right would place the analysis of a reporter--confidential source situation within a longstanding, established framework of constitutional jurisprudence. Although, as is always the case in constitutional decisionmaking, stability of application in this new context would necessarily be developed over time, as precedent was built and the interests that might suffice as compelling were investigated and enunciated, the framework itself would provide a core stability for this doctrinal growth that the post-Branzburg case law fundamentally lacks. This stability would provide guidance to courts that have been doctrinally adrift on the reporter's privilege question. Equally importantly, it would provide fairness and practical utility to those who are subjected to the law and are ordering their communicative decisions around it. (282)

B. A More Appropriate Recognition of the Values Served by Confidential-Source Protection

Beyond being less complicated to understand and apply, the anonymous-speech doctrine is a substantively better avenue for considering anonymity promises between a reporter and confidential source because it requires acknowledgement of the fuller scope of First Amendment values implicated by the reporter-confidential source dynamic. The newsgathering-only focus that emerged from Branzburg, although rightly aiming to enhance the flow of information to the public, is nevertheless myopic, in that it acknowledges only those public-information values and fails to recognize all of the relevant communicative players in that dynamic. The public and its information-flow needs are of course important. The reporter undoubtedly matters a great deal as the key communicator of that information to the public. But failing to doctrinally acknowledge the initial communicator in the dynamic--without whom none of the other First Amendment actors would have information to convey or receive--is an analytical lapse that should be remedied.

This remedy is readily available in the already existing First Amendment anonymous-speech doctrine, which would explicitly serve the dual individual-liberty and public-information values that are implicated when information is shared without author attribution. First, this approach would acknowledge the First Amendment's individual-liberty objectives and squarely serve individual free-speech values that the post-Branzburg approach identifies obliquely, at best. (283) It would require that the inquiry face head-on the values of speaker privacy, antiretaliation, and source bias that are only circuitously acknowledged in the Branzburg line of cases. (284) This approach would also require recognition of the more fundamental First Amendment individual-liberty values of speaker autonomy and self-fulfillment, (285) which simply do not manifest themselves in the Branzburg line, despite a communication that always begins with an individual speaker.

Significantly, this shift of paradigm, although expanding the recognition of values to include individual First Amendment liberties, would not represent a shift away from recognition of the First Amendment's public-information goals. Rather, it would provide a far superior doctrinal investigation of the concerns that are regularly expressed in reporter's privilege cases about incentivizing communications from source to reporter and then from reporter to the public. (286) As the anonymous-speech cases have made clear, (287) application of this line of precedent would continue to acknowledge the First Amendment's purposes of encouraging community-serving information, increasing the contributions willingly made to the marketplace of ideas, (288) and enhancing self-governance with a deeper, richer discourse on matters of public import. (289) These value arguments have been made for decades in support of assorted variations of the post-Branzburg privilege for reporters, (290) but giving them an analytical home in an already-established anonymous-speech rubric makes it clear that the values will receive their due attention and that the applicable doctrinal test has a legitimate place within the First Amendment edifice.

C. The Assertion of the Right by Either the Source or the Reporter

In shifting the focus to the anonymous-speech right, the approach proposed here should make clear that the source, as a protected speaker, may press her own rights in court. This may be increasingly important in the changing world of American journalism, as reporters and media outlets that once had the financial ability and industry cohesion to litigate confidential-source issues become less able or less willing to do so. (291) While the Branzburg-era media were exceptionally profitable and operated with aggressive litigation teams willing to vigorously defend constitutional principles that impacted the operation of the press, (292) today's newspapers are struggling to stay afloat, and the online entities that are replacing them may not possess the resources or inclination to press those rights. (293) For these reasons, a move to a constitutional rubric that explicitly embraces the individual rights of the source could have a positive effect on the enforcement of the newsgathering public-information values.

Significantly, however, those individual litigants would not be the only potential enforcers of the anonymity right. Reporters and media companies that are financially able should continue to press the rights themselves. Rather than litigating these interests through the post-Branzburg framework, reporters and the news organizations that employ them may be found to have third-party standing to assert the anonymous-speech rights of their sources. Although the Court has prudentially sought to limit the instances in which litigants are given standing to "vindicate the constitutional rights of some third party," (294) the rule disfavoring this kind of standing has "never been absolute." (295) In recent years, the Court has regularly exercised its discretion to allow third-party standing "whenever a practical impediment makes it difficult for a right-holder to assert her own rights and some relation exists between the right-holder and the party asserting third-party standing." (296) Both of those conditions are certainly satisfied in the reporter-confidential source dynamic. Accordingly, the adoption of the anonymous-speech framework for deciding confidential-source cases should be accompanied by judicial recognition of third-party standing for reporters who face subpoenas to reveal a source's identity. (297)

1. Closeness of Relationship

Because the limitations on third-party standing "developed as a matter of judicial self-restraint," the courts remain wholly free to "consider whether judicial review of a particular case would be prudent." (298) Where the "relationship of the litigant to the person whose right he seeks to assert" is such that the "enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue," (299) a court can be confident that the construction of the right "is not unnecessary" and that the litigant will be "fully, or very nearly, as effective a proponent of the right" as the actual holder of it. (300) The relationship between reporter and confidential source is just such a relationship. The news-dissemination interests of the reporter are often tied nearly perfectly to those of the source, (301) and the two parties thus have a symbiotic relationship grounded in constitutionally protected activity. Indeed, in granting common-law and statutory privileges to reporters in the last generation, courts (302) and legislatures (303) have repeatedly cited the closeness, the value, and the constitutional interconnectedness of the relationship between the reporter and the confidential source as justifications for recognizing these nonconstitutional versions of the privilege. (304) Many courts (305) and legislatures (306) have emphasized that the relationship is worthy of safeguarding by comparing it to other close relationships that warrant protection under testimonial privileges, such as attorney and client, clergy and penitent, and husband and wife. These aspects of the reporter-source relationship render it at least as close a relationship as, and arguably closer than, many relationships that the Court has found suffice for third-party standing. (307)

2. Practical Impediment

The courts have also suggested that a grant of third-party standing may require some showing that the ability of the third party to assert her own right is in some way compromised by a practical impediment. (308) Given the source-bias, retaliation, and privacy concerns that the Court has recognized as inherent in identifying an anonymous speaker, a reporter asserting the rights of her source should have little difficulty demonstrating a "genuine obstacle" (309) to the source's own assertion of those rights or a "social stigmatization" in forcing this assertion. (310) The source's absence from court would not have a "tendency to suggest that his right is not truly at stake or truly important to him"; (311) rather, it is explainable by the very reasons the anonymity is being sought.

Although courts can and do engage in John and Jane Doe lawsuits that endeavor to preserve the anonymity of a litigant, the reporter in many instances may be "the [anonymous-speech] right's best available proponent." (312) The reporter herself is a key player with a news-dissemination goal and is thus impacted even more directly than many of the parties that the Court has recognized as acceptable surrogates in its third-party standing cases. (313) Moreover, the confidential-source issue will most often arise in the course of a subpoena issued to a reporter, and protection of the reporter will be a necessary step in protecting the anonymous speaker, as the reporter almost always knows the speaker's identity. If the constitutional norm "is to be implemented effectively, the Court may need to permit challenges by those well-situated to lodge them." (314) Indeed, courts have repeatedly acknowledged this principle by allowing third-party standing in closely comparable cases involving an arguable chilling effect on or anonymous-speech right of an initial speaker, coupled with a shared First Amendment interest by the party seeking standing. (315) The Court has declared itself "free to draw upon a wisdom peculiarly judicial in character--to elaborate upon the meaning of constitutionally cognizable injury, and then to weigh considerations of policy" (316) in deciding whether a given litigant should be able to assert a right belonging to another. The nature of the constitutional injuries at stake in a reporter-source dynamic and the weighty policy concerns that the potential revelation of a source implicates should lead a court to allow a reporter to assert the anonymous-speech right of her source. Permitting the reporter to do so in response to a subpoena seeking the source's name will absolutely "further the values inherent in [the source's anonymous speech] right" (317) and will thus be in keeping with the Court's clear trends in applying its own prudential limitations.

D. Anonymous Speech Online: A Useful Analogy

Recent developments in the analogous setting of attempts to unmask anonymous speakers online offer a potentially helpful illustration of both how the third-party standing analysis proposed here might be undertaken by courts and how the substantive anonymous-speech doctrine might effectively operate in the reporter-source context.

The ease with which one can speak anonymously online has created a body of anonymous-speech litigation in which prosecutors, would-be plaintiffs, and other litigants have sought to force the communicative entities that have information regarding a speaker's true identity to reveal that identity, notwithstanding the speaker's desire to remain anonymous. (318) Often, these cases arise out of anonymous comments posted on a website dedicated to the distribution of public-affairs reporting or other information sharing. (319) In at least some cases, the websites are the online editions of newspapers, and the anonymous postings are subscribers' or other readers' comments on a news story produced by a reporter. (320) An individual who wishes to remain anonymous contributes a statement, and then other parties take legal steps to unmask the online speaker because they are interested in the information that she has shared--perhaps because that statement is arguably defamatory, (321) gives rise to another civil cause of action, (322) or is potentially useful to a criminal investigation.

Ordinarily, the plaintiff desiring to reveal the speaker's identity has sued a Jane or John Doe defendant (323) and then "move[d] for issuance of a pre-service discovery subpoena on the owner of the Web site on which the offending material was posted, the anonymous poster's [i]nternet service provider (ISP), or both." (324) These cases thus parallel the reporter's privilege context in an important way: a collector and distributor of information is subpoenaed for the identity of an anonymous speaker whose message was made public through that communicative entity. (325) Many of the reported cases involve would-be plaintiffs seeking anonymous-online-poster identities for purposes of naming the poster as a civil defendant; (326) some cases, however, involve parties that used subpoenas to seek the identity of an anonymous poster who is not a party and whose speech "is not alleged to have caused any harm," but who is instead seen, like the reporters in Branzburg, as a valuable potential witness. (327) Like the subpoenas that journalists receive in relation to confidential sources, (328) subpoenas issued in the online-poster context are typically sweeping, requesting "all identifying information regarding the poster" and "seek[ing] the IP address of the computer from which the person posted the comments to the Web site," (329) along with "the information obtained from the poster when he or she registered with the Web site, which often includes the person's name and email address." (330)

In the last decade, state courts and federal district courts have addressed a series of cases involving these subpoenas and have consistently applied the anonymous-speech doctrine. (331) Very recently, federal appellate courts joined the dialogue and followed the clear pattern set by state courts and federal district courts in expressly applying the longstanding anonymous-speech jurisprudence to cases involving efforts to unmask online posters. (332) Although there is ongoing debate among scholars (333) and courts (334) as to the precise application of the doctrine in weighing anonymity rights against the conflicting interests presented in these cases, it has never been suggested that the First Amendment right to speak anonymously is not at stake or that this rubric is not the correct one for analyzing the propriety of these subpoenas. This admittedly adolescent but burgeoning area of anonymous-speech case law from the courts sheds important light on the viability of the proposals in this Article in two ways. First, it demonstrates the appropriateness of third-party standing in this context. Second, it highlights the substantive workability of the anonymous-speech approach.

1. Individual and Third-Party Standing in Cases of Anonymous Online Posters

The online-poster cases provide a useful framework for thinking about who should have standing to challenge subpoenas issued to communicative entities possessing information about the identities of would-be anonymous speakers. Applying the anonymous-speech doctrine in cases in which the communicative entity receives the subpoena seeking to reveal the anonymous speaker's identity, the online-poster cases have correctly noted that the interconnectedness of First Amendment liberties and the complexity of preserving the value of anonymity call for two potential avenues for asserting the constitutional right. (335)

On the one hand, the anonymous speaker may herself assert the anonymity right as an individual speaker. Federal courts in recent cases have consistently rejected arguments that an anonymous speaker lacks standing to present a challenge when a subpoena seeking her identity is issued to her ISP. (336) This is plainly the right result, because under the anonymous-speech doctrine, the individual-liberty interest and the "personal right in the information sought by the subpoena" (337) belong to the anonymous speaker, who should always be able to invoke her own constitutional right to speak anonymously.

However, the case law in this online-poster area also reveals that the "trend among courts ... is to hold that entities such as newspapers, internet service providers, and website hosts may, under the principle of jus tertii standing, assert the rights of their readers and subscribers" who comment anonymously in their communicative spaces. (338) A few cases illustrate particularly well the principles that would likely correspond to the analysis in the reporter-source context.

In Enterline v. Pocono Medical Center, decided by a federal district court in 2008, a local newspaper published an article about Enterline's sexual harassment lawsuit against her employer. (339) The article appeared in the newspaper's online edition, where several people posted anonymous comments after the article, opining about the allegations, "with some of the posters claiming to have personal knowledge of the parties or facts at issue" in her suit. (340) When Enterline served the newspaper a subpoena demanding the identity of the individuals who had made the anonymous posts, the newspaper declined, asserting the First Amendment anonymous-speech rights of the unnamed posters. (341) The court agreed that the newspaper had "third-party standing to assert the First Amendment rights of individuals posting to the [n]ewspaper's online forums" (342) It found that anonymous commentators "face practical obstacles to asserting their own First Amendment rights," (343) and that "in light of the [n]ewspaper's desire to maintain the trust of its readers and online commentators," (344) the newspaper could be relied on to "zealously argue and frame the issues before the Court." (345) The court also found that the newspaper itself "display[ed] the adequate injury-in-fact to satisfy Article III's case or controversy requirements" (346) because the revelation of the posters' identities would "compromise the vitality of the newspaper's online forums" and reduce the size of its readership in harmful ways. (347) In other words, "the relationship between [the newspaper] and readers posting in the [n]ewspaper's online forums" was the type of relationship that overcame the ordinary prudential bar on third-party standing and allowed the newspaper to "assert the First Amendment rights of the anonymous commentators" speaking on its site. (348)

Another district court reached an identical result a few years later in McVicker v. King. (349) There, McVicker issued a subpoena against a local media company in connection with his unlawful termination suit after a number of anonymous posts on the company's local news website discussed the activities of his employer in ways that McVicker believed would be relevant to impeaching the employer's testimony, (350) The court said that McVicker's argument that the news site lacked standing to assert the anonymous-speech rights of the posters could be "rejected rather summarily." (351) Noting the same factors highlighted in Enterline--the practical obstacles faced by the holders of the right, the injuries experienced by the media company itself, and the likelihood of zealous advocacy by the media company (352)--the court found that the news website "clearly ha[d] third-party standing to assert the First Amendment rights of individuals anonymously posting to its [local news] website." (353)

It is notable that in these and other cases, the courts have pointed to the closeness of the relationship between the speaker and the communicative entity seeking standing to assert the speaker's rights--both in determining that the third party has its own injury-in-fact and in assessing the likelihood of zealous advocacy. (354) Tellingly, courts have reached the conclusion that the relationship warrants third-party standing even though the actual relationship between an online poster and either the website on which she posts or the ISP through which she communicates is not particularly close, in terms of any mutual interest in message content or flow of information to the public. Often, the stated interest of the communicative entity is quite removed from any joint communicative or public-information goal that it might share with the speaker or even with the public. The courts focus primarily on the potential that the online newspaper or ISP will lose advertising revenue or customers, (355) rather than on any interest in expressive activity--and understandably so. After all, the speakers in the online-poster cases are chiming in with their own views after the newsgathering has occurred. They are not collaboratively providing information to the newsgatherer's effort but are instead speaking independently, after the fact, with information that the reporter and her newspaper have neither deemed newsworthy nor vetted in any way. Indeed, recent communications scholarship suggests that journalists' views of these posters are largely unfavorable. (356) Although online posts are plainly capable of making some contribution to public dialogue (357) and even potentially enhancing future newsgathering, (358) the communications research indicates that reporters believe that the practice on the whole fosters bigoted and hateful comments, (359) diminishes the reputation of the news organization, and is not in keeping with longstanding publication policies. (360) Some say they would gladly do away with the practice entirely. (361) News outlets appear to be protecting these posters out of principle--recognizing that there would be some chilling effect on future speech if anonymous online commenters were identified (362)--and not because they see themselves as truly engaged in a joint, public-serving First Amendment activity or because they envision the posters as part and parcel of their newsgathering or editorial processes.

In contrast, the relationship between the confidential source and the newspaper in the course of genuine newsgathering is significantly greater and authentically combines First Amendment interests in a symbiotic way that contributes to the larger social good. (363) While the newspaper often knows only the IP address of the anonymous poster, the reporter almost always knows the identity of the source and has worked with her in developing the story. Journalistic standards require that the "credibility and motives of the anonymous source" be investigated before she is quoted in a published story, while no such process ordinarily occurs for online posters. (364) And while an anonymous source "often is a whistleblower in an especially good position to have newsworthy information," providing "the most important news of the day," the poster "may be sitting in his or her pajamas spouting unsupported opinions." (365) Thus, although it is unclear whether they will continue to seek third-party standing, (366) the online news sites' successful assertion of that standing on behalf of speakers who are much less obviously entwined with the communicative mandate of the news organization demonstrates the propriety of third-party standing in the more persuasive context of reporters and their actual sources.

2. Substantive Application of Anonymous-Speech Doctrine in Online-Poster Cases

The anonymous-online-poster case law also highlights how the substantive application of the anonymous-speech doctrine in the context of confidential sources could operate in real-world terms and alleviates any concern that an application of strict scrutiny would lead to the overprotection of anonymity interests and the undervaluation of other important competing concerns. A brief examination of the doctrine's use in these cases shows the courts taking care to prioritize speech rights but remaining cognizant of the competing need for revealing the identity in certain contexts. In this way, the analytically and doctrinally superior anonymous-speech rubric seems to better achieve the delicate balance attempted by the qualified privilege crafted by the Branzburg dissent and adopted by a majority of the circuits.

As a starting proposition, the online-poster cases have correctly recognized that even when a subpoena is issued against a communicative entity that possesses the identity but obtained the information on an understanding that it would publish the speech anonymously, a protectable anonymous-speech right remains at stake, (367) The courts have acknowledged in these cases that anonymity of communication is a core First Amendment right that serves critically important values--both of the individual-liberty variety (368) and of the public, free-flow-of-information variety. (369) In so doing, the cases cite the key precedents giving strong protection to the right of a speaker not to identify herself and applying strict scrutiny to government impositions on that right. (370) But these cases have also recognized that the right to anonymous speech, like all First Amendment rights, (371) is "not absolute," (372) and that although the burden is high, the government sometimes satisfies it and may legitimately unmask a speaker who preferred anonymity.

Rightly, the cases have indicated that this may occur when the government has an interest in the identity because the anonymous speaker is legitimately a defendant in a civil suit for defamation or another cause of action, (373) or because the anonymous speaker is an indispensable witness in a suit to which she is not a party. (374) But courts require demonstrations that those interests in fact exist, that they are weighty enough to overcome the core First Amendment anonymity right, and that the demand for the identity is an appropriately tailored means of meeting the asserted interest. In the context of an anonymous speaker who is potentially a defendant in a civil suit, the tool for achieving this has been a careful assessment of that suit's viability, (375) with tests "designed to sort legitimate defamation actions from 'cyberslapps'--unfounded suits designed only to chill speech." (376) In cases where "expressive speech is at issue, as in defamation cases, courts tend to apply a high-burden test, and when the speech is alleged to constitute copyright or trademark infringement, courts tend to apply a low-burden test." (377) In the context of an anonymous speaker who is sought as a nonparty witness, the courts have demanded that the party seeking disclosure clear an even "higher hurdle" (378) and have used a four-part test for determining whether the request for the identity is tailored to protect the speech right that is at stake:

(1) [whether] the subpoena seeking the information was issued in good faith and not for any improper purpose, (2)[whether] the information sought relates to a core claim or defense, (3) [whether] the identifying information is directly and materially relevant to that claim or defense, and (4) [whether] information sufficient to establish or to disprove that claim or defense is unavailable from any other source. (379)

What results is a very close cousin to the qualified privilege set forth in the Branzburg dissent, (380) although much more carefully rooted in the appropriate anonymous-speech doctrine and much better able to recognize the full range of First Amendment values at stake in a request to unmask an anonymous speaker. Importantly, both tests essentially require that the anonymous-speech right be overcome as a last, rather than a first, resort. (381)

All told, although the case law in the area of anonymous online posters is not completely uniform, (382) and appellate courts likely will need to weigh in with clarifications on the nuances of the applicable tests, these cases illustrate the workability of the approach proposed in this Article. The balance between protecting anonymous-speech rights and recognizing the countervailing interests that often motivate subpoenas in civil suits and criminal prosecutions is a delicate one. Anonymous speech has, particularly in recent years, been portrayed as a dangerous practice and an alarming trend. (383) But the core First Amendment principles that have long called for safeguarding this speech remain critical to both the full realization of individual liberties and the free flow of public-serving information in our democracy. What is needed in the confidential-source context is a meaningful framework for recognizing those First Amendment values and a useful mechanism for determining when the countervailing interests are compelling enough and the tailoring is narrow enough to overcome the ordinary rule favoring anonymous speech. As in the anonymous-online-poster cases, courts may sometimes determine that requiring a reporter to reveal the name of her confidential source is necessary because the source is legitimately a defendant in a viable civil suit or is an indispensable witness in a suit to which she is not a party. Assuming a showing that the subpoena was issued in good faith, is directly and materially relevant to a core claim or defense, and seeks information that is unavailable from any other source, courts may strike a balance against the protection of an anonymous speaker, thereby ensuring that the important competing interests receive their appropriate weight. But the new starting point for this reporter-source inquiry--the anonymous-speech rights of the original speaker--will more carefully align the inquiry with the constitutional values at stake and ensure that the necessary balancing is performed in accordance with longstanding and constitutionally prescribed precepts.

CONCLUSION

For the last forty years, the critically important speech dynamic between confidential sources and reporters has been governed by an inappropriately narrow standard born of a Supreme Court dissent and focused on questions of definition and degree that were overly complex from the beginning and have become increasingly intractable over time. The primary public-serving aim of the post-Branzburg reporter's privilege is a constitutionally admirable one: to ensure the free flow of information to the public by removing disincentives for confidential sources to come forward with newsworthy material and for reporters to convey that material to the wider citizenry. But those goals can be equally, if not better, served by an already-existing body of First Amendment doctrine that also recognizes imperative individual-liberty values that are largely overlooked by the post-Branzburg approach.

The Court should recognize the deeply rooted anonymous-speech doctrine's applicability in this area and should frame the reporter--confidential source inquiry within this rubric. Doing so will secure many benefits: It will serve the wider array of First Amendment values implicated by the situation. It will offer guidance that is more useful to reporters and sources, eliminate many of the greatest difficulties in the invocation and application of the post-Branzburg doctrine, and trigger application of well-established constitutional doctrines with which litigants have familiarity and courts have expertise. Individual speakers may assert these rights themselves, but the Court should also recognize third-party standing in reporters who promised confidentiality, who can then assert the right in response to a subpoena seeking the source's name. As evidenced by the recent application of the anonymous-speech doctrine in the analogous setting of online posters, this approach should prove to be both practically more workable and analytically clearer than the post-Branzburg approach. Given the very real interests at stake--for anonymous sources, for reporters who work with them, and for the public that consumes the news that they produce--this positive doctrinal shift is one that the Court should be eager to effectuate.

(1.) See James A. Guest & Alan L. Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 NW. U. L. REV. 18, 18 (1969) ("[N]ewsmen have ... argued that courts should interpret the first amendment as giving a constitutional privilege to conceal sources in order to assure the free flow of news"); Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age, 65 OHIO ST. L.J. 249, 261 (2004) ("[W]ithout protection of their sources, won't information flows dry up and freedom of expression lose meaning?").

(2.) The Court has denied certiorari in several cases raising the issue in the last decade. See, e.g., Wen Ho Lee v. Dep't of Justice, 413 F.3d 53 (D.C. Cir. 2005), cert. denied, 547 U.S. 1187 (2006); In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005), cert. denied sub nom. Cooper v. United States, 545 U.S. 1150 (2005), opinion superseded, 438 F.3d 1141 (D.C. Cir. 2006).

(3.) 408 U.S. 665 (1972).

(4.) Investigative journalism had recently hit the mainstream and was becoming accepted as a legitimate form of news reporting. JAMES L. AUCOIN, THE EVOLUTION OF AMERICAN INVESTIGATIVE JOURNALISM 18 (2005). Stories involving confidential sources gained a very high profile; they included the publication of the Pentagon Papers and the Washington Post's coverage of the Watergate scandal, which broke the same year that the Court handed down the Branzburg decision and involved a confidential source. See N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam); Carl Bernstein & Bob Woodward, FBI Finds Nixon Aides Sabotaged Democrats, WASH. POST, Oct. 10, 1972, at A1.

(5.) See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 606 [hereinafter Blasi, The Checking Value]; Robert Haydock, Jr., The Public Interest in Protection of Newsmen's Sources, Bos. B.J., Feb. 1974, at 7, 8 ("[T]he right to protect these sources is particularly important in connection with government misfeasance or malfeasance."); James D. Henderson, Comment, The Protection of Confidences: A Qualified Privilege for Newsmen, 1971 LAW & Soc. ORD. 385, 387-89 ("With numerous ... examples on record, it becomes clear that when a newsman is subpoenaed to reveal confidences, his injury is shared by the public.").

(6.) See Cynthia H. Plevin & Steven M. Plevin, Comment, Journalists in the Courts: Toward Effective Shield Legislation, 8 U.S.F. L. REV. 664, 664 (1974) ("[I]f journalists are to be protected from compelled disclosure of confidential sources and undisseminated material ... that protection must find its source either in action by Congress or by the state legislatures"); Alice M. Klement, Note, Shaping the Contours of the Newsperson's Privilege--Gilbert v. Allied Chemical Corp., 26 DEPAUL L. REV. 185, 185 n.1 (1976) (describing shield law proposals for statutorily granting the privilege). See generally Vince Blasi, The Newsman's Privilege: An Empirical Study, 70 MICH. L. REV. 229 (1971) [hereinafter Blasi, The Newsman's Privilege] (offering empirical data suggesting a need for a reporter's privilege); David Gordon, The Confidences Newsmen Must Keep, COLUM. JOURNALISM REV., Nov./Dec. 1971, at 15 (arguing in favor of a reporter's privilege).

(7.) Branzburg, 408 U.S. at 688 (quoting 8 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW [section] 2192 (McNaughton rev. 1961)).

(8.) See RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 MANN. L. REV. 585, 589-91, 652-53 (2008) [hereinafter Jones, Empirical Study] (listing state statutes and cases); RonNell Andersen Jones, Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism, 84 WASH. L. REV. 317, 384-86 (2009) [hereinafter Jones, Media Subpoenas] (same); Erik Ugland, The New Abridged Reporter's Privilege: Policies, Principles, and Pathological Perspectives, 71 OHIO ST. L.J. 1, 57-59 (2010) (summarizing state law trends).

(9.) See Theodore Campagnolo, The Conflict Between State Press Shield Laws and Federal Criminal Proceedings: The Rule 501 Blues, 38 GONZ. L. REV. 445, 446-47 (2003).

(10.) Jones, Media Subpoenas, supra note 8, at 326 & n.28 (citing commentary making this argument).

(11.) See, e.g., ARIZ. REV. STAT. ANN. [section] 12-2237 (2003) ("A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify...." (emphasis added)); COLO. REV. SWAT. [section] 13-90-119(2) (2012) ("[N]o newsperson shall, without such newsperson's express consent, be compelled to disclose ..." (emphasis added)); FLA. STAT. [section] 90.5015(2) (2012) ("A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source...." (emphasis added)); NEV. REV. STAT. [section] 49.275 (2011) ("No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose...." (emphasis added)); TENN. CODE ANN. [section] 24-1-208(a) (2000) ("A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required ... to disclose ... any information or the source of any information...." (emphasis added)).

(12.) Branzburg, 408 U.S. at 667.

(13.) A narrow majority insisted "that reporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial." Id. at 690-91.

(14.) See Jones, Media Subpoenas, supra note 8, at 346 & n.111 (listing cases in which "federal circuit courts gave a media-generous reading to Branzburg").

(15.) See, e.g., N.Y. Times Co. v. Gonzales, 459 F.3d 160, 163 (2d Cir. 2006) ("[T]he rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the ... reporter's telephone records...." (emphasis added)); United States v. Criden, 633 F.2d 346, 357 (3d Cir. 1980) (referencing "[t]he journalists' privilege" and the "right for a newsman to refuse to answer relevant and material questions asked during a criminal proceeding" (emphasis added)); Baker v. F & F Inv., 470 F.2d 778, 783 (2d Cir. 1972) (referencing "a journalist's right to protect confidential sources" (emphasis added)).

(16.) Baker, 470 F.2d at 781 ("[F]ederal law on the question of compelled disclosure ... is at best ambiguous."); Laura Durity, Shielding Journalist-"Bloggers": The Need to Protect Newsgathering Despite the Distribution Medium, 2006 DUKE L. & TECH. REV. 11, [paragraph] 14, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=l157&context=dltr ("[T]he ambiguous outcome [of Branzburg] has led to three decades of assorted judicial and legislative approaches to the reporter's privilege and significant lower court confusion...." (footnote omitted)); Note, Public and Press Rights of Access to Prisoners After Branzburg and Mandel, 82 YALE L.J. 1337, 1347 (1973) (addressing "Branzburg's ambiguity").

(17.) McDonald, supra note 1, at 254 (noting that newsgathering law is inconsistent).

(18.) See, e.g., Paul Marcus, The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 ARIZ. L. REV. 815, 836 (1984) ("Even a thorough reading of the four opinions in the Branzburg case will not lead to an absolutely certain understanding of the holding in the one Supreme Court decision that dealt with the notion of reporter's privilege." (footnote omitted)); Genevra Kay Loveland, Comment, Newsgathering: Second-Class Right Among First Amendment Freedoms, 53 TEX. L. REV. 1440, 1462 (1975) ("As a result, their opinions [in subsequent cases about the public's right to know], like Branzburg, are contradictory and confusing. After generously bestowing first amendment status upon newsgathering, they seem fearful of venturing too far.").

(19.) See, e.g., Blasi, The Checking Value, supra note 5, at 602 ("One can only be dissatisfied with the current state of Supreme Court doctrine regarding newsgathering. In effect, the Court has failed to accord the newsgathering interest the full measure of favorable procedures, presumptions, and substantive doctrines that normally follow from the determination that a particular interest is truly of First Amendment pedigree"); McDonald, supra note 1, at 253 ("[J]udges complain[] about the 'unsettled' and 'fuliginous' nature of the legal principles in this area." (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 29 (1986) (Stevens, J., dissenting), and El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992))); Richard A. Posner, The Supreme Court, 2004 Term--Foreword: A Political Court, 119 HARV. L. REV. 31, 95 & n.191 (2005) ("[C]asting the essential fifth vote for the 'majority' opinion while also writing a separate opinion qualifying the Court's opinion [as in Branzburg] is bad practice....").

(20.) See infra Section I.B.1.

(21.) See infra notes 181-184 and accompanying text.

(22.) See infra Section III.C.

(23.) See infra Section III.D.

(24.) See infra Section II.A.

(25.) See, e.g., Talley v. California, 362 U.S. 60, 64 (1960).

(26.) Blasi, The Newsman's Privilege, supra note 6, at 234.

(27.) Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 HARV. L. & POL'Y REV. 185, 197-98 (2007) (noting that it was a confidential informant, Daniel Ellsberg, who had secretly given the New York Times the series of classified documents focused on the history of the government's policy in Vietnam); see also N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam); David A. Anderson, Freedom of the Press, 80 TEX. L. REV. 429, 523 n.503 (2002) (discussing the prosecution of Ellsberg as the source of the leak).

(28.) Jones, Media Subpoenas, supra note 8, at 328. The Watergate break-in occurred just days before the Court issued its Branzburg opinion. Joel M. Gora, The Source of the Problem of Sources: The First Amendment Fails the Fourth Estate, 29 CARDOZO L. REV. 1399, 1400-01 (2008). The Washington Post's coverage of the Watergate scandal, made possible by an informant then referred to as "Deep Throat," was published later that same year. Bernstein & Woodward, supra note 4.

(29.) See Mark Feldstein, A Muckraking Model: Investigative Reporting Cycles in American History, 11 INT'L J. PRESS/POL. 105, 111-13 (2006) (describing the "resurgence of investigative reporting").

(30.) See RonNell Andersen Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 WASH. & LEE L. REV. 557, 580-91 (2011) [hereinafter Jones, Litigation, Legislation, and Democracy]; Note, Open Meeting Statutes: The Press Fights for the "Right to Know", 75 HARV. L. REV. 1199, 1199 (1962).

(31.) See, e.g., ROBERT DALLEK, LYNDON B. JOHNSON 260 (2004) (describing Johnson's tensions with the media); DAVID GERGEN, EYEWITNESS TO POWER 88 (2000) ("The [Johnson] [A]dministration lied so notoriously, reporters said, that it didn't have a credibility gait--it had a canyon."); WILLIAM E. PORTER, ASSAULT ON THE MEDIA 3 (1976) (describing Nixon's efforts to "intimidate publishers and broadcast ownerships"); WILLIAM SAFIRE, BEFORE THE FALL 341-42 (1975) (chronicling Nixon's view that "the press is the enemy").

(32.) Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 COLUM. L. REV. 929, 1077-78 (1973).

(33.) Investigative journalism rose to such prominence during this time period that the Pulitzer Prize began to include a separate category for investigative reporting. Anderson, supra note 27, at 449 n.102.

(34.) See Blasi, The Newsman's Privilege, supra note 6, at 252; see also Guest & Stanzler, supra note 1, at 43, 57-61 (quoting major newspaper editors describing the growing percentage of stories arising from confidential sources); Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 YALE L.J. 317, 330 (1970) (sharing press surveys on the number of stories based on confidential sources).

(35.) See, e.g., THOMAS A. BIRKLAND, AN INTRODUCTION TO THE POLICY PROCESS: THEORIES, CONCEPTS, AND MODELS OF PUBLIC POLICY MAKING 144 (2011) (describing early "muckrakers"); Erik Ugland, Demarcating the Right to Gather News: A Sequential Interpretation of the First Amendment, 3 DUKE J. CONST. L. & PUB. POL'Y 113, 176 (2008) (describing the "long tradition of investigative journalism in the United States").

(36.) Anderson, supra note 27, at 449; see also Paulette D. Kilmer, The Press and Government, in AMERICAN JOURNALISM 23, 30 (W. David Sloan & Lisa Mullikin Parcell eds., 2002) ("Press skepticism toward the government that had originated years earlier came to a head during the Vietnam War and reached full flower during the Watergate scandal.").

(37.) AUCOIN, supra note 4, at 47.

(38.) Id. at 48.

(39.) Anthony Lewis, Cantankerous, Obstinate, Ubiquitous: The Press, 1975 UTAH L. REV. 75, 78.

(40.) Potter Stewart, "Or of the Press", 26 HASTINGS L.J. 631, 634 (1975).

(41.) Gordon, supra note 6, at 20.

(42.) Stewart, supra note 40, at 634 ("The primary purpose of the constitutional guarantee of a free press was ... to create a fourth institution outside the Government as an additional check on the three official branches.").

(43.) Lewis, supra note 39, at 76 ("[R]eporters are culture heroes and our cleanest-cut young people dream of being Woodward and Bernstein."); see also Virginia Dodge Fielder & David H. Weaver, Public Opinion on Investigative Reporting, NEWSPAPER RES. J., Winter 1982, at 54, 57 (noting that 77.1 percent of the public describes investigative reporting as "very important").

(44.) See DAVID A. YALOF &; KENNETH DAUTRICH, THE FIRST AMENDMENT AND THE MEDIA IN THE COURT OF PUBLIC OPINION 10 (2002) (describing 1970s data showing that nearly three-quarters of Americans expressed confidence in news anchor Walter Cronkite and noting a "positive connection" between the public and the press).

(45.) See Blasi, Newsman's Privilege, supra note 6, at 229-30.

(46.) See Haydock, supra note 5, at [section] ("[S]ixty-two per cent of [respondents to a Gallup Poll in the 1970s] agreed that news reporters should be protected from being forced to disclose confidential sources."). These public sentiments were reflected in the numerous proposals at the time for shield laws at both the state and federal levels. For discussion of the "rash of federal shield law proposals" in the 1970s, see Jones, Media Subpoenas, supra note 8, at 345. Likewise, of the states that now have shield laws, nineteen of them enacted or amended their laws between 1960 and 1980. See ALASKA STAT. [section][section] 09.25.300-09.25.390 (2012) (enacted 1967); ARIZ. REV. STAT. ANN. [section] 12-2237 (2003) (enacted 1960); CAL. EVID. CODE [section] 1070 (West 2009) (enacted 1965, amended 1967, 1971, 1972, and 1974); DEL. CODE ANN. tit. 10, [section][section] 4320-4326 (1999 & Supp. 2010) (enacted 1973); LA. REV. STAT. ANN. [section][section] 45:1451-45:1459 (2010) (enacted 1964); MINN. STAT. ANN. [section][section] 595.021--595.025 (West 2010) (enacted 1973); MONT. CODE ANN. [section] 26-1-902 (2011) (amended 1977 and 1979); NEB. REV. STAT. [section][section] 20-144 to 20-147 (2007) (enacted 1973); NEV. REV. STAT. [section] 49.275 (2011) (enacted 1971, amended 1975); N.J. STAT. ANN. [section] 2A:84A-21 (West 2011) (enacted 1960, amended 1977); N.M. STAT. ANN. [section] 38-6-7 (LexisNexis 1998) (enacted 1973); N.Y. CIV. RIGHTS LAW [section] 79-h (McKinney 2009) (enacted 1970, amended 1975); N.D. CENT. CODE [section] 31-01-06.2 (2010) (enacted 1973); OHIO REV. CODE ANN. [section][section] 2739.04, 2739.12 (LexisNexis 2008) (enacted 1977); OKLA. STAT. tit. 12, [section] 2506 (2011) (enacted 1978); OR. REV. STAT. [section][section] 44.510-44.540 (2011) (enacted 1973, amended 1979); 42 PA. CONS. STAT. ANN. [section] 5942 (West 2000) (enacted 1976); R.I. GEN. LAWS [section] 9-19.1-2 (2012) (enacted 1971); TENN. CODE ANN. [section] 24-1-208 (2000) (enacted 1973).

(47.) See Blasi, Newsman's Privilege, supra note 6, at 235 ("The press subpoena controversy [was] in the courts ... largely because the sensitivity to each other's needs that [previously] characterize[d] government-press relations [was, by 1971,] virtually nonexistent.").

(48.) Branzburg v. Hayes, 408 U.S. 665 (1972).

(49.) 408 U.S. at 709, aff'g In re Pappas, 266 N.E.2d 297 (Mass. 1971).

(50.) Branzburg, 408 U.S. at 708, rev'g Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).

(51.) See Brief for the American Newspaper Guild et al. as Amicus Curiae, Branzburg, 408 U.S. 665 (Nos. 70-57, 70-94), 1971 WL 133339 [hereinafter Newspaper Guild Brief]; Brief for Amicus Curiae, the American Newspaper Publishers Ass'n, Branzburg, 408 U.S. 665 (Nos. 70-57, 70-85, 70-94), 1971 WL 133334; Brief of American Society of Newspaper Editors et al. as Amici Curiae, in Support of Earl Caldwell, Branzburg, 408 U.S. 665 (No. 70-57), 1971 WL 133332; Brief for Chicago Tribune Co. as Amicus Curiae, Branzburg, 408 U.S. 665 (No. 70-57), 1971 WL 133340 [hereinafter Chicago Tribune Brief]; Brief of the New York Times Co., Inc. et al. as Amici Curiae, Branzburg, 408 U.S. 665 (No. 70-57), 1971 WL 133333 [hereinafter National Media Brief]; Brief for Radio Television News Directors Ass'n, as Amicus Curiae, Branzburg, 408 U.S. 665 (No. 70-57), 1971 WL 133335 [hereinafter News Directors Brief]; Brief of the Washington Post Co. & Newsweek, Inc., as Amici Curiae, in Support of Respondent, Branzburg, 408 U.S. 665 (No. 70-57), 1971 WL 133330 [hereinafter Washington Post Brief].

(52.) Branzburg v. Pound, 461 S.W.2d 345, 345-46 (Ky. 1970), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972). Judge Pound was sucked in office by Judge Hayes, the named party in the case before the Supreme Court. 408 U.S. at 668 n.3.

(53.) Pound, 461 S.W.2d at 346.

(54.) Id.

(55.) The state court ultimately relied solely on the construction of Kentucky's reporter's privilege statute to reject Branzburg's claim that he was exempt from testifying. Pound, 461 S.W.2d at 346, 348. It found that Branzburg had "abandoned the claim of [F]irst [A]mendment privilege," id. at 346 n.1, but the Supreme Court disagreed, Branzburg, 408 U.S. at 671 n.6.

(56.) Branzburg, 408 U.S. at 669-70.

(57.) Branzburg v. Meigs, 503 S.W.2d 748, 749 (Ky. 197l), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).

(58.) This time, the state court ruled on both the statutory and constitutional issues. Meigs, 503 S.W.2d at 749-50.

(59.) Id. at 750; see also id. at 751 (holding that the reporter's interest in gathering news did not outweigh the public's need for the evidence and rejecting "speculation" that requiring the testimony would "inhibit[] his ability to obtain information").

(60.) In re Pappas, 266 N.E.2d 297, 298 (Mass. 1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).

(61.) Id. (internal quotation marks omitted).

(62.) Id. at 299-300 (noting arguments centered on "the extent to which the First Amendment [protects] news gatherers" and describing the argument that "to force a newsman to testify ... may impair the ability of a free press").

(63.) Id. at 302-03 (holding that "[a]ny effect on the free dissemination of news [would be] indirect, theoretical, and uncertain" and finding "no constitutional newsman's privilege ... to refuse to appear and testify before a court or grand jury").

(64.) Caldwell v. United States, 434 F.2d 1081, 1082 (9th Cir. 1970), rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).

(65.) Id.

(66.) Id. at 1084.

(67.) Id. at 1085 ("[C]ompelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardizes those relationships and thereby impairs the journalist's ability to gather, analyse, and publish the news." (internal quotation marks omitted)).

(68.) Branzburg v. Hayes, 408 U.S. 665, 679 (1972) (characterizing Caldwell's holding).

(69.) Jones, Litigation, Legislation, and Democracy, supra note 30, at 571 (describing the motivations of newspapers as "legal instigators").

(70.) See Branzburg, 408 U.S. at 666-67 (listing organizations that filed amicus briefs); see also supra note 51 (specifying the amicus briefs filed by press entities and industry advocates).

(71.) See, e.g., Brief for Petitioner, Paul M. Branzburg at 3, Branzburg, 408 U.S. 665 (No. 70-85), 1971 WL 133354, at *3 (framing the Question Presented as "[w]bether the First Amendment to the Constitution of the United States prohibits a grand jury from compelling a newspaper reporter to disclose confidential information"); id. at 9, 1971 WL 133354, at *9 ("Newsgathering activities are essential to the effective functioning of a free press, and as such are protected by the First Amendment to the Constitution of the United States."); see also Reply Brief at 8-9, Branzburg, 408 U.S. 665 (No. 70-94), 1970 WL 122436, at *8-9 ("The gathering of news protected by the First Amendment is, at the very least, the right to be free from governmental restraints and inhibitions which destroy the newsmen's confidential relationships and thus seriously restrict the information he obtains and that the public in turn is entitled to receive.... The right to gather ... is ... an intrinsic part of the entire process protected by the First Amendment under the general description, 'the freedom' ... of the press.'" (final alteration in original) (emphasis added)).

(72.) See, e.g., Newspaper Guild Brief, supra note 51, at 6, 1971 WL 133339, at *6 ("A free press cannot serve the basic purpose of the First Amendment, to enlighten the people, unless it is an informed press."); Chicago Tribune Brief, supra note 51, at 15, 1971 WL 133340, at "15 (arguing that the absence of a reporter's privilege results in "an invidious and constant suppression of press freedom"); National Media Brief, supra note 51, at 25, 1971 WL 133333, at *25 ("[O]ff-the-record information obtained in confidence is of the utmost importance to the performance of the reporter's function,'); Washington Post Brief, supra note 51, at 8, 1971 WL 133330, at *8 (arguing that subpoenas for confidential information "seriously impair or even destroy the ability of the news media to fulfill the unique role assigned to them in the functioning of our democratic society").

(73.) E.g., Brief for Petitioner, Paul M. Branzburg, supra note 71, at 13, 1971 WL 133354, at "13 ("If the right to gather news is limited, then the right to a free press is correspondingly limited."); id. at 17, 1971 WL 133354, at "17 ("By interfering with the newsgathering process the state has made severe inroads on the fundamental freedoms guaranteed to the press....").

(74.) E.g., id. at 13, 1971 WL 133354, at "13 ("[T]he right of the public to receive the facts and information must be guarded...."); id. at 22, 1971 WL 133354, at *22 (arguing that when reporters are forced to testify about anonymous communications, "the public loses an important source of news" (emphasis added)).

(75.) Brief of the ACLU et al., Amici Curiae at 3-4, Branzburg v. Hayes, 408 U.S. 665 (1972) (No. 70-57), 1971 WL 133338, at *3-4 [hereinafter ACLU Brief]; see also Washington Post Brief, supra note 51, at 15, 1971 WL 133330, at "15 ("[G]athering the news is as much protected by the First Amendment as is its dissemination. It is obvious that newsgathering depends in large part upon information given to reporters in confidence....").

(76.) Newspaper Guild Brief, supra note 51, at 5, 1971 WL 133339, at *5; see also National Media Brief, supra note 51, at 7, 1971 WL 133333, at *7 ("The right of the public to be informed by print and electronic media, which is deeply rooted in the First Amendment, coincides with a reporter's right of access to news sources....").

(77.) See, e.g., Brief for Petitioner, Paul M. Branzburg, supra note 71, at 26, 1971 WL 133354, at *26 ("State action which deprives an individual of the right to speak anonymously through the news media violates the First Amendment."); Washington Post Brief, supra note 51, at 18, 1971 WL 133330, at "18 ("Th[e] Court has repeatedly emphasized, in a variety of contexts, the value of anonymity in the collection and dissemination of information,').

(78.) See Brief for Petitioner, Paul M. Branzburg, supra note 71, at 26-27, 1971 WL 133354, at *26-27 ("By compelling the testimony of ... reporters concerning their informants, and thereby discouraging these informants from speaking out, the state deprives these individuals of effective freedom of expression and the right to be heard."). Pappas's brief never mentions anonymity at all. Reply Brief, supra note 71, at 8-9, 1970 WL 122436, at *8-9 (focusing exclusively on the newsgathering right).

(79.) See, e.g., Brief for Petitioner, Paul M. Branzburg, supra note 71, at 26-27, 1971 WL 133354, at *26-27 ("Jobs are threatened, economic security may be endangered, and official state action is often a result of individual expressions of minority views."); ACLU Brief, supra note 75, at 11-12, 1971 WL 133338, at *11-12 (suggesting that, in speaking confidentially with reporters, political dissidents, low-level criminals, and government officials were "attempting to communicate their ideas to the public in an anonymous fashion").

(80.) See, e.g., Brief for Petitioner, Paul M. Branzburg, supra note 71, at 9, 1971 WL 133354, at *9.

(81.) Id. at 20-21, 1971 WL 133354, at "20-21; see also ACLU Brief, supra note 75, at 11, 1971 WL 133338, at *11 (calling anonymous-speech protection "[a]nother set of established doctrines ... bearing upon upholding a [reporter's] First Amendment right to refuse to disclose confidential information").

(82.) Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (emphasis added); see also id. at 679-80 ("[The reporters] press First Amendment claims that may be simply put: that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information....").

(83.) Id. at 698.

(84.) Id. at 695; see also id. at 682 ("This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.").

(85.) Id. at 690 (emphasis added).

(86.) Id. at 695. Indeed, in one of the few instances in which the majority did reference the anonymous-speech rights of sources, it minimized them by suggesting that "[t]he preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution." Id. at 691. Though it later acknowledged that there may be "situations where a source is not engaged in criminal conduct" id. at 693, the majority expressed doubt as to whether "the informer who prefers anonymity but is sincerely interested in furnishing evidence of crime" would actually be deterred, id. at 695.

(87.) Id. at 665, 667.

(88.) See id. at 709 (Powell, J., concurring) ("The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.").

(89.) Id. at 710.

(90.) Id.; Lucy A. Dalglish & Casey Murray, Deja Vu All Over Again: How a Generation of Gains in Federal Reporter's Privilege Law Is Being Reversed, 29 U. ARK. LITTLE ROCK L. REV. 13, 19 (2006) ("[M]any subpoenaed reporters and their lawyers convinced courts all over the country that Justice Powell's concurrence represented the true majority view.").

(91.) For a list of cases embracing the argument that a First Amendment qualified privilege exists, see Jones, Media Subpoenas, supra note 8, at 346 & n. 111.

(92.) See John E. Osborne, The Reporter's Confidentiality Privilege: Updating the Empirical Evidence After a Decade of Subpoenas, 17 COLUM. HUM. RTS. L. REV. 57, 67 (1985) (outlining "the development of a flexible 'qualified' privilege" in the years after Branzburg).

(93.) See, e.g., McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) (rejecting the widely accepted reading of Branzburg giving rise to a qualified privilege).

(94.) See United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011) (applying a reporter's privilege to a journalist's refusal to respond to a subpoena for the name of a confidential source and citing the strong majority reading of Branzburg as setting forth a qualified privilege).

(95.) State courts have likewise created a privilege despite Branzburg's narrow rejection of it. See Jones, Empirical Study, supra note 8, at 590 & nn.28-29 (discussing the development of the privilege by state courts applying common law or federal or state constitutional law).

(96.) Ugland, supra note 8, at 2 n.1 ("As a result [of Justice Powell's concurrence], many lower federal courts have since recognized some form of the privilege, and many have endorsed the criteria outlined in Justice Stewart's Branzburg dissent.").

(97.) Branzburg v. Hayes, 408 U.S. 665, 743 (1972) (Stewart, J., dissenting) (footnote omitted).

(98.) Id. at 728.

(99.) Id. at 729.

(100.) Id. at 728.

(101.) See id. at 735 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-63 (1958), and Talley v. California, 362 U.S. 60, 64 (1960)).

(102.) Id. at 735.

(103.) Id. at 730; see also id. at 744 (citing a need to "avoid deterrence of such sources").

(104.) Id. at 736.

(105.) See, e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) ("[I]nformation may only be compelled from a reporter claiming privilege if the party requesting the information can show that it is highly relevant...." (emphasis added)); LaRouche v. NBC, 780 F.2d 1134, 1139 (4th Cir. 1986) ("In determining whether the journalists' privilege will protect the source in a given situation, it is necessary ... to balance the interests involved." (emphasis added)); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595 n.12 (1st Cir. 1980) (noting that the rights are "lodged in the reporter and his publisher"); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980) ("[A] reporter has a First Amendment privilege...."); Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir. 1979) (acknowledging a "public policy giving newspaper reporters protection"); Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975) (balancing the due process need for information with the "right of the newsmen to keep secret a source of information" (emphasis added)); Baker v. F & F Inv., 470 F.2d 778, 783 (2d Cir. 1972) (discussing "a journalist's right to protect confidential sources" (emphasis added)).

(106.) See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003) (criticizing cases that cite Branzburg in support of applying a reporter's privilege).

(107.) See supra notes 16-19.

(108.) See Free Flow of Information Act 2007: Hearing on H.R. 2102 Before the H. Comm. on the Judiciary, 110th Cong. 29 (2007) [hereinafter Free Flow of Information Act Hearing] (testimony of William Satire, Chairman, The Dana Foundation) ("I am here as a journalist to testify from my real world that 'a chilling effect' ... is being felt by today's reporters and columnists."); id. at 103 (prepared statement of the National Association of Broadcasters) ("It is myth to suggest that journalists will be able to unearth the information they need from sources when they must explain the procedures of a grand jury proceeding and a subpoena before every interview.").

(109.) See supra notes 16-19.

(110.) Compare Sonja R. West, Awakening the Press Clause, 58 UCLA L. REV. 1025 (2011) (arguing for a narrow definition of the press and suggesting that the Press Clause is best read to establish press exceptionalism), with Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. REV. 459 (2012) (arguing that the Press Clause does not secure any fights exclusive to members of the organized media).

(111.) Branzburg v. Hayes, 408 U.S. 665, 703-04 (1972).

(112.) Indeed, it may become increasingly difficult to tell whether a party is a reporter or a source. For example, when it accepted diplomatic cables and other information from an army soldier, WikiLeaks took on the features of a reporter; when information from the site appeared in the New York Times, WikiLeaks seemed more akin to a source. See Ginger Thompson, Competing Portraits in WikiLeaks Case, N.Y. TIMES, Dec. 23, 2011, at A15, http:// www.nytimes.com/2011/12/23/us/hearing-in-private-mannings-wikileaks-case-ends.html.

(113.) See Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 MINN. L. REV. 515, 516-17 (2007) ("[T]he development of the Internet and online publications have raised a host of new, perplexing questions about the purpose and scope of the privilege.").

(114.) Anderson, supra note 27, at 435.

(115.) David A. Anderson, Confidential Sources Reconsidered, 61 FLA. L. REV. 883, 903 (2009); see also Robert Kuttner, The Race: Newspapers Have a Bright Future as Print-Digital Hybrids After All--But They'd Better Hurry, COLUM. JOURNALISM REV., Mar./Apr. 2007, at 24 (discussing newspapers "with primarily online presence").

(116.) David Kohler, Self Help, the Media and the First Amendment, 35 HOFSTRA L. REV. 1263, 1290 (2007) (emphasis added).

(117.) State v. Buchanan, 436 P.2d 729, 731 (Or. 1968) (en banc) ("[I]t would be difficult to rationalize a rule that would create special constitutional rights for those possessing credentials as news gatherers which would not conflict with the equal-privileges and equal-protection concepts also found in the Constitution."), quoted in Papandrea, supra note 113, at 574.

(118.) See Papandrea, supra note 113, at 578 ("Some scholars have suggested that the reporter's privilege should be available only to those who publish information involving matters of public concern...."); Randall P. Bezanson, The Developing Law of Editorial Judgment, 78 NEB. L. REV. 754, 760 (1999) ("[T]he press's claim to freedom is strongest when its speech is a product of a process of judgment that is ... grounded in a reasoned effort to publish information ... judged useful and important for the maintenance of freedom in a self-governing society.").

(119.) Note, Developments in the Law--Privileged Communications, 98 HARV. L. REV. 1450, 1607 (1985).

(120.) Geoffrey R. Stone, Essay, Why We Need a Federal Reporter's Privilege, 34 HOFSTRA L. REV. 39, 47 (2005) (emphasis omitted).

(121.) Many state statutes extend protection only to those employed by, or otherwise connected to, the institutional media. See, e.g., ALA. CODE [section] 12-21-142 (LexisNexis 2005); CAL. EVID. CODE [section] 1070(a), (b) (West 2009); FLA. STAT. [section] 90.5015(1)(a) (2012); KY. REV. STAT. ANN. [section] 421.100 (LexisNexis 2005); N.J. STAT. ANN. [section] 2A:84A-21 (West 2011); S.C. CODE ANN. [section] 19-11-100 (Supp. 2011); TENN. CODE ANN. [section] 24-1-208(a) (2000). Some statutes expressly extend a privilege to scholars and students. See DEL. CODE ANN. tit. 10, [section] 4320 (1999 & Supp. 2010); MD. CODE ANN., CTS. & JUD. PROC. [section] 9-112(b)(2) (LexisNexis Supp. 2012). Others focus on the functional work of the individual invoking the privilege. See MINN. STAT. ANN. [section] 595.023 (West 2010); NEV. REV. STAT. [section] 49.275 (2011).

(122.) In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1156 (D.C. Cir. 2005) (Sentelle, J., concurring).

(123.) Wen Ho Lee v. Dep't of Justice, 401 F. Supp. 2d 123, 140 (D.D.C. 2005) ("Reporters cannot be readily identified.... Without more definition for those entitled to invoke a reporter's privilege ... it can hardly be said that such a privilege would be certain or narrowly drawn").

(124.) In re Grand Jury Subpoena, Judith Miller, 438 F.3d at 1156-57 (Sentelle, J., concurring).

(125.) See Josh Gerstein, Bloggers Blur the Definition of Reporters' Privilege, N.Y. SUN, Dec. 6, 2004, at 6 (quoting media attorney Floyd Abrams as saying "[i]f everybody's entitled to the privilege, nobody will get it"); David Shaw, Media Matters: Do Bloggers Deserve Basic Journalistic Protections?, L.A. TIMES, Mar. 27, 2005, at E14, http:// articles.latimes.com/2005/mar/27/entertainment/ca-shaw27 ("[T]he nation's estimated 8 million bloggers are not entitled to the same constitutional protection as traditional journalists--essentially newspaper, magazine, radio and television reporters and editors.").

(126.) See Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998) ("Academicians ... should be accorded protection commensurate to that which the law provides for journalists.... After all, scholars too are information gatherers and disseminators."); Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) ("[T]he critical question for deciding whether a person may invoke the journalist's privilege is whether she is gathering news for dissemination to the public."); von Bulow v. von Bulow, 811 F.2d 136, 144-45 (2d. Cir. 1987) ("[T]he protection from disclosure may be sought by one not traditionally associated with the institutionalized press...."); Linda L. Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 HOUS. L. REV. 1371, 1411 (2003) ("[A]ny individual engaged in journalism should be protected by journalists' shield laws."); Papandrea, supra note 113, at 519-20 ("Given ... the purpose behind the reporter's privilege, the privilege should not be limited to those who are serving as traditional journalists...."); Dan Paul, Why a Shield Law?, 29 U. MIAMI L. REV. 459, 461 (1975) ("[I]t would be a terrible mistake to draw shield legislation so narrowly that it would apply only to reporters."); Stone, supra note 120, at 51 (arguing that the answer to who should be the beneficiary of a reporter's privilege "should be a functional one").

(127.) Papandrea, supra note 113, at 516.

(128.) Anderson, supra note 115, at 903; see also Randall D. Eliason, Leakers, Bloggers, and Fourth Estate Inmates: The Misguided Pursuit of a Reporter's Privilege, 24 CARDOZO ARTS & ENT. L.J. 385, 428 (2006) ("One of the most vexing challenges facing those who seek to enact a privilege in our media-saturated age is deciding to whom the privilege should apply."); James Thomas Tucker & Stephen Wermiel, Enacting a Reasonable Federal Shield Law: A Reply to Professors Clymer and Eliason, 57 AM. U. L. REV. 1291, 1312 (2008) ("[T]he Supreme Court could not draw lines consistent with the First Amendment where '[a]lmost any author' could make a claim to the need for the free flow of information by protecting their confidential sources," (quoting Branzburg v. Hayes, 408 U.S. 665, 705 (1972))).

(129.) Branzburg v. Hayes, 408 U.S. 665, 727 (1972) (Stewart, J., dissenting).

(130.) Reporters' Privilege Legislation: Preserving Effective Federal Law Enforcement: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 16 (2006) [hereinafter Law Enforcement Hearing] (statement of Steven D. Clymer, Professor, Cornell Law School).

(131.) See supra Section I.A.2.

(132.) Branzburg, 408 U.S. at 693.

(133.) Id. at 693-94.

(134.) Eliason, supra note 128, at 395 ("The Circuit Courts of Appeal are in disarray ... over the extent to which a privilege exists."); Jones, Empirical Study, supra note 8, at 591-93 (chronicling the tension between McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), and courts that have adopted comparatively "journalist-friendly readings of Branzburg").

(135.) Jones, Empirical Study, supra note 8, at 586 ("For more than thirty years, a legislative battle has raged over the need for a federal shield law for journalists."); Robert D. Lystad, Anatomy of a Federal Shield Law: The Legislative and Lobbying Process, COMM. LAW., Summer 2005, at 3, available at http://www.americanbar.org/content/dam/aba/publishing/ communications_lawyer/2005/summer_2005.authcheckdam.pdf (outlining the major historical and contemporary congressional attempts to pass a federal shield law).

(136.) Jones, Media Subpoenas, supra note 8, at 321 n.14, 323 (discussing extensive scholarship on reporter's privilege).

(137.) See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1170 (D.C. Cir. 2005) (Tatel, J., concurring in the judgment) ("[S]pecial counsel presumes that leaks will go on with or without the privilege.... [T]he available evidence suggests the special counsel is wrong."); ALEXANDER M. BICKEL, THE MORALITY OF CONSENT 84-85 (1975) ("Forcing reporters to divulge ... confidences would dam the flow to the press, and through it to the people, of the most valuable sort of information...."); Rachel Smolkin, Uncharted Terrain, AM. JOURNALISM REV., Oct./Nov. 2005, at 32, 34 ("Confidential sources and newsrooms have noticed [subpoenas to journalists], and what has resulted is a chilling effect.... Confidential sources have retreated, newsrooms have become wary and the free flow of information to the public has been impoverished." (quoting a position paper that the Newspaper Association of America circulated on Capitol Hill)).

(138.) Comm. on Commc'ns & Media Law, Ass'n of the Bar of N.Y.C., The Federal Common Law of Journalists' Privilege: A Position Paper, 60 RECORD 214, 225, 227 (2005) ("[W]ithout the ability of reporters to use these types of sources, many stories would have gone unreported.... Important information the public relies upon would simply dry up."); Dalglish & Murray, supra note 90, at 14 ("If [reporters] are perceived as being an agent of discovery for a plaintiff, a prosecutor, or a defendant, who will trust them? Ultimately, sources will dry up and journalists will not be able to do their jobs."); Loft Robertson, Kind of Confidential, AM. JOURNALISM REV., June/July 2007, at 26, 33 (quoting Lance Williams, a San Francisco Chronicle investigative reporter who was threatened with jail time for refusing to respond to a subpoena, as saying, "If we don't get a shield law, it will eventually shut down sources" (internal quotation marks omitted)).

(139.) Free Flow of Information Act Hearing, supra note 108, at 13 (statement of Rep. Mike Pence) ("Without the promise of confidentiality, many important conduits of information about our [g]overnment will be shut down."); see also Jones, Empirical Study, supra note 8, at 666 ("Subpoenas to the media are issued with some regularity; they are not limited to the media organizations or the substantive issues involved in the highest-profile recent cases; and, at least in some categories, they appear to be on the increase."); Jones, Media Subpoenas, supra note 8, at 393 ("The breadth and depth of the qualitative and quantitative data demonstrate that both the threat and the reality of subpoenas alter behaviors in newsrooms of all sizes.").

(140.) See, e.g., Branzburg v. Hayes, 408 U.S. 665, 698-99 (1972) (rejecting the argument that "refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news" by noting that historically, without a privilege, "the press has flourished"); Law Enforcement Hearing, supra note 130, at 16 (statement of Steven D. Clymer, Professor, Cornell Law School) (arguing that the "impediment to the free flow of information" without a privilege is "a hard case to make" and that "people are going to make leaks whether or not there is Federal protection for anonymous sources"); 153 CONG. REC. 27,301 (2007) (statement of Rep. Lamar Smith) ("[F]or 200 years in this Nation, the press, in fact, has flourished [without a privilege]. Information has flowed freely."); Douglas E. Lee, Do Not Pass Go, Do Not Collect $200: The Reporter's Privilege Today, 29 U. ARK. LITTLE ROCK U REV. 77, 97 (2006) (citing use of confidential sources for stories on Watergate, the Clinton impeachment, and the Enron and Abu Ghraib scandals as "logical inconsistencies in the 'chilling effect' argument").

(141.) See, e.g., Lillian R. BeVier, The Journalist's Privilege--A Skeptic's View, 32 OHIO N.U.L. REV. 467, 468 (2006) (highlighting the "weak empirical foundations" for the privilege and arguing that "the extreme consequences [press advocates] forecast were the privilege to be denied seem most unlikely to eventuate"); Eliason, supra note 128, at 417-18 ("[V]irtually every judicial and academic discussion concerning the privilege proceeds from the assumption that this 'chilling effect' exists.... [I]t is impossible to prove empirically.").

(142.) Tucker & Wermiel, supra note 128, at 1321-22.

(143.) Ugland, supra note 8, at 45-46.

(144.) Wen Ho Lee v. Dep't of Justice, 401 F. Supp. 2d 123, 139-40 (D.D.C. 2005); see also BeVier, supra note 141, at 475-76 ("[W]e are simply awash in indeterminacy about the impact that recognizing or not recognizing a reporter's privilege would actually have.").

(145.) Wen Ho Lee, 401 F. Supp. 2d at 139; see also Tucker & Wermiel, supra note 128, at 1321-22 ("[Y]ou can try to measure it, but empirically it is virtually an impossible task....").

(146.) Wen Ho Lee, 401 F. Supp. 2d at 139.

(147.) See Eliason, supra note 128, at 395-96 (describing varying approaches in different circuits).

(148.) Indeed, courts hold legislatures to precisely this standard in the statutory context, striking legislation as void for vagueness when people "of common intelligence must necessarily guess at its meaning," Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), because vague laws restricting speech run the grave risk of chilling constitutionally protected speech, see Baggett v. Bullitt, 377 U.S. 360, 372 (1964).

(149.) NAACP v. Button, 371 U.S. 415, 433 (1963).

(150.) See Newsmen's Privilege: Hearings on S. 36, S. 158, S. 318, S. 451, S. 637, S. 750, S. 870, S. 917, S. 1128, and S. J. Res. 8 Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 93d Cong. 362 (1973) (testimony of Paul Branzburg, Newspaper Reporter, Detroit Free Press) ("[R]eporters need certainty when dealing with informants. A source wants to know with precision whether or not the reporter can be forced to reveal his identity.").

(151.) Petition for Writ of Certiorari at 9-10, Cooper v. United States, 545 U.S. 1150 (2005) (No. 04-1508), 2005 WL 1123536, at *9-10.

(152.) Stone, supra note 120, at 45 (emphasis omitted).

(153.) News Directors Brief, supra note 51, at 3, 1971 WL 133335, at *3 (quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)).

(154.) Brief Amici Curiae of the State of Oklahoma et al. in Support of Petitioners at 7, Miller v. United States, 545 U.S. 1150 (2005) (Nos. 04-1507, 04-1508), 2005 WL 1317523, at *7.

(155.) See supra notes 109-114 and accompanying text.

(156.) Tony Pederson, Warming Up to the Idea of a Shield Law, NEWS MEDIA & L., Winter 2005, at 8.

(157.) Stone, supra note 120, at 45.

(158.) Petition for Writ of Certiorari, supra note 151, at 26, 2005 WL 1123536, at *26; see also Stone, supra note 120, at 45 ("The current state of affairs leaves sources, journalists, prosecutors, and lower federal courts without any clear guidance, and the scope of the First Amendment-based journalist-source privilege differs significantly from one part of the nation to another.").

(159.) See, e.g., Dalglish & Murray, supra note 90, at 39 (arguing that "the media has lost much of the ground it gained since Branzburg" and forecasting a possible "end to any judicial respect afforded to a federal reporter's privilege developed under the First Amendment").

(160.) See, e.g., id.

(161.) See, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005); In re Special Proceedings, 373 F.3d 37 (1st Cir. 2004); In re Grand Jury Subpoenas, 438 F. Supp. 2d 1111 (N.D. Cal. 2006); Wen Ho Lee v. Dep't of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003), aff'd in part and vacated in part, 413 F.3d 53 (D.C. Cir. 2005); see also Jones, Empirical Study, supra note 8, at 615 ("Beginning in approximately 2002, a firestorm of headlines emerged as reporters' battles--and ultimate losses--were placed in the public spotlight in a way that had not been seen for at least three decades").

(162.) Anthony L. Fargo, The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists and the Uncertain Future of the Federal Journalist's Privilege, 14 WM. & MARY BILL RTS. J. 1063, 1111 (2006).

(163.) See id. ("[T]he ad hoc nature of privilege law since 1972 has made it less than predictable....").

(164.) Brief Amici Curiae of ABC, Inc., et al. in Support of Petitioners at 5, Miller v. United States, 545 U.S. 1150 (2005) (Nos. 04-1507, 04-1508), 2005 WL 1199075, at *5 [hereinafter ABC Brief (Miller)] ("Today, reporters and their potential sources operate in a far more uncertain and risky environment as a result of the approach to the reporters' privilege taken by the federal courts...."); Jones, Media Subpoenas, supra note 8, at 375 ("Both quantitative and qualitative data signal a deep discouragement on the part of editors and news directors, who.... overwhelmingly perceive that ... courts have become less protective of the media, prosecutors and civil litigants have become more willing to subpoena the press, and the frequency with which subpoenas are issued to news organizations has increased").

(165.) E.g., Brief of Appellants Judith Miller, Matthew Cooper and Time, Inc. at 46, In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (Nos. 04-3138, 04-3139, and 04-3140), 2004 WL 4957264, at *46.

(166.) Reporters' Privilege Legislation: Issues and Implications: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 164-65 (2005) [hereinafter Issues and Implications Hearing] (prepared statement of Geoffrey R. Stone, Professor, University of Chicago Law School); Tucker & Wermiel, supra note 128, at 1321-22.

(167.) Free Flow of Information Act Hearing, supra note 108, at 64 (testimony of Jim Taricani, Investigative Reporter, WJAR/NBC10 Providence, New Bedford, R.I.) ("Sending reporters to prison for protecting their sources results in a chilling effect on the press."); id. at 29 (testimony of William Satire, Chairman, The Dana Foundation) ("Believe me, when a journalist is threatened with jail or, indeed, is jailed for refusing to blow the whistle on a whistleblower or to betray a trusting source, he or she feels a coercive chill."). 168. Brief for Petitioner, Paul M. Branzburg, supra note 71, at 23, 1971 WL 133354, at *23.

(169.) Issues and Implications Hearing, supra note 166, at 29 (statement of Geoffrey R. Stone, Professor, University of Chicago Law School) ("The more uncertainty that exists in whether or not a privilege will in fact be honored, the greater the reluctance on the part of the source to come forward with the information, and ... then many sources, perhaps most sources, will simply say the better part of wisdom is to remain silent.").

(170.) Petition for Writ of Certiorari, supra note 151, at 26, 2005 WL 1123536, at *26 ("In the end, differing standards defeat the very purpose of the privilege, as a state-law privilege is of little value if it offers no reliable protection from forced disclosure in federal court.").

(171.) Id. at 9, 2005 WL 1123536, at *9; see also Jones, Empirical Study, supra note 8, at 656 ("When a reporter engages in newsgathering and is faced with the question of whether to promise confidentiality, she.... cannot know what legal standard might ultimately operate upon that moment. In the absence of a federal privilege, even a reporter operating under a state shield law with an absolute privilege can make no guarantees to sources at the times in which those guarantees are sought.").

(172.) N.Y. Times Co. v. Gonzales, 382 F. Supp. 2d 457, 505 (S.D.N.Y. 2005), quoted in Brief Amici Curiae of the State of Oklahoma et al., supra note 154, at 5, 2005 WL 1317523, at *5.

(173.) Free Flow of Information Act Hearing, supra note 108, at 64 (2007) (statement of Jim Taricani, Investigative Reporter, WJAR/NBC10 Providence, New Bedford, R.I.) ("Every time a reporter or news organization doesn't do a story because of fear of being held in criminal contempt, it is the public that loses."); see also ABC Brief (Miller), supra note 164, at 5, 2005 WL 1199075, at *5 (arguing that the "uncertainty" in the reporter's privilege "threatens to jeopardize the flow of information to the public").

(174.) Anthony L. Fargo, The Journalist's Privilege for Nonconfidential Information in States with Shield Laws, 4 COMM. L. & POL'Y 325, 328 (1999); see also Free Flow of Information Act Hearing, supra note 108, at 106 (letter from Denise A. Cardman, Acting Director, American Bar Association) ("[T]he absence of a clearly defined federal reporters' privilege is affecting ... editorial decisions, which in turn affects the free flow of information to the public.").

(175.) Tucker & Wermiel, supra note 128, at 1323.

(176.) Gonzales v. NBC, 194 F.3d 29, 35 (2d Cir. 1999).

(177.) Free Flow of Information Act Hearing, supra note 108, at 89 (statement of Rep. Mike Pence).

(178.) See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980) (plurality opinion) (discussing the role that newsgatherers play as "surrogates for the public" and the ways in which the press contributes to "public understanding of the rule of law" (quoting Neb. Press Ass'n v. Smart, 427 U.S. 539, 587 (1976) (Brennan, L, concurring in the judgment) (internal quotation marks omitted)); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975) ("Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally").

(179.) Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) ("A broadly defined freedom of the press assures the maintenance of our political system and an open society.").

(180.) Talley v. California, 362 U.S. 60, 65 (1960); see also NAACP v. Alabama ex tel. Patterson, 357 U.S. 449, 462 (1958) ("It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective ... restraint on freedom of association...."); Thomas v. Collins, 323 U.S. 516, 540 (1945) ("We think a requirement that one must register before he undertakes to make a public speech ... is quite incompatible with the requirements of the First Amendment.").

(181.) Talley, 362 U.S. at 64.

(182.) Id.

(183.) See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 370-71 (1995) (Thomas, J., concurring in the judgment) ("[T]he Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights.").

(184.) Id. at 342 (majority opinion); Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam).

(185.) This Article focuses exclusively on this anonymous-source context. Other rights that have sometimes been bundled under the generic term "reporter's privilege"--including the right not to turn over notes or other newsgathering materials not generated through any confidential relationship--may well prove worthy of protection under other constitutional considerations but are analytically distinct from the source-speech right that is the focus here.

(186.) See, e.g., McIntyre, 514 U.S. at 357; Talley, 362 U.S. at 64.

(187.) See Branzburg v. Hayes, 408 U.S. 665, 715 (1972) (Douglas, J., dissenting) ("[E]ffective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion...."); id. at 725 (Stewart, J., dissenting) ("The reporter's constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public.").

(188.) See Talley, 362 U.S. at 64-65.

(189.) The handbills contained only the name "National Consumers Mobilization" and a post office box address. Id. at 61.

(190.) Id. The ordinance, Section 28.06 of the Municipal Code of the City of Los Angeles, provided, in relevant part, that "[n]o person shall distribute any hand-bill in any place under any circumstances, which does not have printed on the cover, or the face thereof, the name and address of [the author or distributor]." Id. at 60-61.

(191.) Id. at 62.

(192.) Id. at 65.

(193.) Id.

(194.) Id. at 64.

(195.) Id. at 64-65.

(196.) Id. at 65; see also McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 n.6 (1995) (listing other influential authors who wrote without identifying themselves).

(197.) Talley, 362 U.S. at 64.

(198.) 514 U.S. at 334.

(199.) McIntyre, 514 U.S. at 357.

(200.) Section 3599.09(A) of the Ohio Revised Code provided, in relevant part, that "[n]o person shall write, print, post, or distribute ... a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications ... unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of [the author or head of issuing organization]." McIntyre, 514 U.S. at 357.

(201.) Id. at 341.

(202.) Id. at 337.

(203.) Id. at 348-53.

(204.) Id. at 357.

(205.) Id.

(206.) Id. at 341 & n.4.

(207.) Id. at 341-42.

(208.) See id. at 342 ("[T]he interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiting disclosure as a condition of entry.").

(209.) Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audiences, and Anonymous Speech, 82 NOTRE DAME L. REV. 1537, 1574 (2007) (arguing that anonymous-speech protection leads to the "inclusion of voices in public debate that might not otherwise be heard").

(210.) See, e.g., Mills v. Alabama, 384 U.S. 214, 219 (1966) (calling free speech the mechanism that the Framers chose to "improve our society and keep it free"); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open"); Stromberg v. California, 283 U.S. 359, 369 (1931) (remarking that free discussion is "essential to the security of the Republic" and a "fundamental principle of our constitutional system"); ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 93-94 (1948) ("[T]he principle of the freedom of speech is derived ... from the necessities of self-government ...."); Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 883 (1963) ("The crucial point ... is not that freedom of expression is politically useful, but that it is indispensable to the operation of a democratic form of government.").

(211.) McIntyre, 514 U.S. at 357.

(212.) Id.

(213.) See, e.g., C. Edwin Baker, Autonomy and Free Speech, 27 CONST. COMMENT. 251, 259 (2011) (arguing that the "most appealing" First Amendment theory views "the constitutional status of free speech as required respect for a person's autonomy in her speech choices"); Emerson, supra note 210, at 879-81 (describing the "individual self-fulfillment" theory that man "finds his meaning and his place in the world" through the development of the powers of thought and expression, and that suppression of expression is thus "an affront to the dignity of man, a negation of man's essential nature"); Lidsky & Cotter, supra note 209, at 1568 ("Anonymous speech is sometimes said to promote individual autonomy and self-fulfillment....").

(214.) Lidsky & Cotter, supra note 209, at 1568-69 (footnote omitted).

(215.) McIntyre, 514 U.S. at 342.

(216.) See id. at 357.

(217.) See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 660 (2004) ("[T]he Constitution demands that content-based restrictions on speech be presumed invalid, and that the Government bear the burden of showing their constitutionality." (citations omitted)); Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002) (a regulation that "prohibits speech on the basis of its content" receives strict scrutiny); Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116-18 (1991) (a law "directed only at works with a specified content" receives strict scrutiny).

(218.) Republican Party of Minn., 536 U.S. at 774-75.

(219.) McIntyre, 514 U.S. at 355.

(220.) Lidsky & Cotter, supra note 209, at 1543 ("In essence, the [McIntyre] Court treated the decision to remain anonymous as an editorial judgment like any other, which makes choosing to omit one's name no different than choosing to omit an opposing viewpoint or to include serial commas.").

(221.) McIntyre, 514 U.S. at 342.

(222.) See, e.g., Bates v. City of Little Rock, 361 U.S. 516, 524, 527 (1960); Shelton v. Tucker, 364 U.S. 479 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).

(223.) See, e.g., Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165-67 (2002); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 183, 198 (1999) (striking down a Colorado requirement that ballot-initiative-petition circulators wear an identification badge bearing the circulator's name, noting the judiciary's obligation "to guard against undue hindrances to political conversations and the exchange of ideas," and pointing to the "reluctance of potential circulators to face ... recrimination and retaliation").

(224.) Bates, 361 U.S. at 524 (holding that a statute mandating public disclosure of NAACP membership list would be upheld "only upon showing a subordinating interest which is compelling"); Patterson, 357 U.S. at 463 (noting that only a compelling interest would be "sufficient to justify the deterrent effect" that the forced disclosure of NAACP membership would produce).

(225.) 536 U.S. at 154 & n.1, 155 & nn.2-3.

(226.) Id. at 166-67.

(227.) Id.

(228.) Id. at 164-65 (noting that the Village of Stratton could legitimately attempt to prevent fraud and crime); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (noting the risk that anonymous speech will be abused to "shield[] fraudulent conduct"); Talley v. California, 362 U.S. 60, 64 (1960) (acknowledging interests in combatting fraud and libel but noting that the ordinance at issue was not limited to that speech).

(229.) See, e.g., Seth F. Kreimer, Sunlight, Secrets, and Scarlet Letters: The Tension Between Privacy and Disclosure in Constitutional Law, 140 U. PA. L. REV. 1, 78 (1991); Lidsky & Cotter, supra note 209, at 1574-75; Noah Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1536-37 (1996); Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 YALE L.J. 1084, 1109-12 (1961) [hereinafter Disclosure and the Devil].

(230.) See, e.g., Saul Levmore, The Anonymity Tool, 144 U. PA. L. REV. 2191, 2193 (1996) ("Anonymity may encourage honest communication, but ... it may also stimulate dishonest, corrupt, or simply socially undesirable decisionmaking or communications"); Amy Constantine, Note, What's in a Name? McIntyre v. Ohio Elections Commission: An Examination of the Protection Afforded to Anonymous Political Speech, 29 CONN. L. REV. 459, 469-70 (1996) ("[D]isclosure ... serves to protect the subject of the speech. Arguably an individual has a right to be informed about who is criticizing him or speaking against him, truthful or otherwise."); Sherri L. Eyer, Comment, From Whence It Comes Is the Message More Revealing Than the Messenger? McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995), 100 DICK. L. REV. 1051, 1066-67 (1996) ("[I]ndividuals would be less likely to attach their names to malicious leaflets than to positive materials.").

(231.) See Kreimer, supra note 229, at 87 ("Abstracting from authorship is a willful sacrifice of relevant, and perhaps vital, information").

(232.) Disclosure and the Devil, supra note 229, at 1109.

(233.) See Levmore, supra note 230, at 2193 (noting that anonymity may "stimulate dishonest, corrupt, or simply socially undesirable decisionmaking or communications"); Constantine, supra note 230, at 469-70 ("[A] person who is required to put his name to a document is much less likely to lie than one who can lie anonymously.").

(234.) Kreimer, supra note 229, at 78 (arguing that identification of those who "participate[] in public debate ... would provide the facts for accurate decision-making, and also avoid covert manipulation"); Disclosure and the Devil, supra note 229, at 1111 (noting the argument that "the volume and skill of modern propaganda make identification of the source of an argument essential to its evaluation").

(235.) Lidsky & Cotter, supra note 209, at 1537.

(236.) Disclosure and the Devil, supra note 229, at 1111; see also Kreimer, supra note 229, at 87 (providing examples where the identity of the speaker might change how one examines an argument); Levmore, supra note 230, at 2194 ("Generally speaking, the value of identification ... is greater the more costly it is for the recipient independently to evaluate the accuracy of the communication.").

(237.) Lidsky & Cotter, supra note 209, at 1559; see also Kreimer, supra note 229, at 85 ("In one dimension, the identity of a speaker is a proxy for previous communications.").

(238.) Lidsky & Cotter, supra note 209, at 1562 ("[T]he speaker with the reputation for dishonesty or poor quality work has an obvious motive to keep her identity a secret, because in doing so she may increase the likelihood that people will believe her statement or overrate her work product.").

(239.) Id. at 1574.

(240.) Id. at 1539; see also Constantine, supra note 230, at 469-70.

(241.) Levine, supra note 229, at 1536-37.

(242.) McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).

(243.) McConnell v. Fed. Election Comm'n, 540 U.S. 93, 196 (2003); Buckley v. Valeo, 424 U.S. 1, 66-68 (1976) (per curiam).

(244.) See, e.g., Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165 (2002); McIntyre, 514 U.S. at 357.

(245.) McIntyre, 514 U.S. at 357.

(246.) Id. at 349. The Court further noted that this interest "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." Id.

(247.) Watchtower, 536 U.S. at 164-65.

(248.) Id. at 167 (citation omitted).

(249.) See Doe No. 1 v. Reed, 130 S. Ct. 2811, 2818 (2010) ("We have a series of precedents considering First Amendment challenges to disclosure requirements in the electoral context"). In this disclosure context, the Court has said that it is applying "exacting scrutiny," id., a term that has proven somewhat opaque but that increasingly appears to be not as demanding as strict scrutiny. The standard "requires a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest." Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 914 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (per curiam)). Still, the Court has emphasized that to withstand this scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Davis v. Fed. Election Comm'n, 554 U.S. 724, 744 (2008) (citation omitted).

(250.) 424 U.S. 1, 62-63 (1976) (per curiam).

(251.) Buckley, 424 U.S. at 25.

(252.) Id. at 66-68.

(253.) Id. at 68.

(254.) 540 U.S. 93 (2003).

(255.) McConnell, 540 U.S. at 196.

(256.) See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 914-16 (2010).

(257.) Lidsky & Cotter, supra note 209, at 1555 ("Even if McConnell and McIntyre are distinguishable, they have a deep theoretical inconsistency.").

(258.) See, e.g., Kreimer, supra note 229, at 6-8.

(259.) See, e.g., Buckley v. Valeo, 424 U.S. 1, 64 (1976) (per curiam) ("[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.").

(260.) E.g., id. at 44-45, 75 (explaining that the Court was required to apply a "strict standard of scrutiny" in reviewing the disclosure requirements); Citizens United, 130 S. Ct. at 914 (subjecting disclaimer and disclosure requirements to "exacting scrutiny").

(261.) McIntyre v. Ohio Elections Comm'n, 514 U.S. 337, 358 (1995) (Ginsburg, J., concurring).

(262.) Talley v. California, 362 U.S. 60, 61 (1960).

(263.) McIntyre, 514 U.S. at 337.

(264.) Branzburg v. Hayes, 408 U.S. 665, 695 (1972) (acknowledging "job security, personal safety, or peace of mind"); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980) ("[A] defamed plaintiff might relish an opportunity to retaliate against the informant."); Cervantes v. Time, Inc., 464 F.2d 986, 989 (8th Cir. 1972) (acknowledging the risk of "retaliation or reprisals and physical danger"); National Media Brief, supra note 51, at 19, 1971 WL 133333, at * 19 (acknowledging desire not to place job in jeopardy).

(265.) These situations are not precisely identical, of course, because the reporter's source, unlike the speaker of the leaflet message, speaks through an intermediary who sometimes takes a more active role in translating the message, determining which portions of the information to include, and placing it within a larger context in a news story. Indeed, the reporter may do so in a way that is dissatisfying to the initial speaker. In truth, however, virtually all communication is mediated in some way. Leafleteers convey their message by way of a printer. Individuals who communicate online do so through an internet service provider ("ISP"). In choosing the mechanism by which her speech will be mediated, every speaker conducts a risk-benefit calculation. The source has presumably accepted whatever additional consequences come with mediating her communication through a reporter in exchange for the perceived benefits, which might include garnering a wider audience, gathering greater support for the message, and increasing the legitimacy that might attend a message delivered through this vehicle. The important common element for First Amendment analysis is that the source who speaks on condition of confidentiality has made a conscious choice in favor of anonymity. The Court has recognized the value of anonymous speech--to the substance of public debate and to the liberty interests of the speaker--without regard to the vehicle chosen to convey the message to listeners.

(266.) Branzburg, 408 U.S. at 668, 673 (Branzburg "refused to identify the individuals he had seen," and Pappas "refused to answer any questions about what had taken place" in order to "protect confidential informants."). Truly anonymous-source situations do exist, such as a letter left in a newspaper's mailbox or an untraceable phone call with a tip. However, it is rare for these types of sources to be cited in print because of reader skepticism of "the accuracy of reports involving confidential sources and ... the motives of those who decline to go on record." Jones, Empirical Study, supra note 8, at 651.

(267.) Importantly, as noted above, the Court has recognized that even partial revelation of one's identity does not preclude a right to anonymity as to that which has not been revealed. See supra note 227 and accompanying text.

(268.) See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980) (plurality opinion); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491-92 (1975); Estes v. Texas, 381 U.S. 532, 539 (1965) ("The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences...."), quoted in Branzburg, 408 U.S. at 727 (Stewart, J., dissenting).

(269.) Regulations limiting the manner of speech are constitutional only if they are "justified without reference to the content of the regulated speech," are "narrowly tailored to serve a substantial governmental interest," and "leave open ample alternative channels" of communication. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). Underlying this doctrine is a starting presumption in favor of speaker choice in the manner of communication. Only if there exists some governmental interest unrelated to the suppression of free expression may the government take steps to limit the choice of communicative mechanism. Id. And never has the Court suggested that the mere existence of alternative avenues, standing alone, suffices to justify a limitation on a speaker's choice of a particular manner of communication.

(270.) See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960).

(271.) See Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150, 165-68 (2002); McIntyre, 514 U.S. at 344; Talley, 362 U.S. at 64.

(272.) See Richard M. Cardillo, Note, I Am Publius, and I Approve This Message: The Baffling and Conflicted State of Anonymous Pamphleteering Post-McConnell, 80 NOTRE DAME L. REV. 1929, 1949 (2005) (explaining the considerations motivating the protection of anonymous speech); infra note 284 (giving examples of these concerns being articulated under the post-Branzburg approach).

(273.) See, e.g., McIntyre, 514 U.S. at 357; Branzburg v. Hayes, 408 U.S. 665, 725-26 (1972) (Stewart, J., dissenting); Talley, 362 U.S. at 64.

(274.) Branzburg, 408 U.S. at 728 (Stewart, J., dissenting) ("The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized: (1) newsmen require informants to gather news; (2) confidentiality--the promise or understanding that names or certain aspects of communications will be kept off the record--is essential to the creation and maintenance of a news-gathering relationship with informants; and (3) an unbridled subpoena power--the absence of a constitutional right protecting, in any way, a confidential relationship from compulsory process--will either deter sources from divulging information or deter reporters from gathering and publishing information.").

(275.) Cf. Buckley v. Valeo, 424 U.S. 1, 74 (1976) (per curiam) (requiring those who wish for an exemption from disclosure requirements to show "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties").

(276.) Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995) ("[T]he fundamental rule of protection under the First Amendment [is] that a speaker has the autonomy to choose the content of his own message.").

(277.) See McIntyre, 514 U.S. at 342 ("[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment."); see also Police Dep't of Chicago v. Mosley, 408 U.S. 92, 96 (1972) ("The essence of this forbidden censorship is content control.").

(278.) See McIntyre, 514 U.S. at 341-42.

(279.) Id. at 347.

(280.) It should be noted that although all the case law from the Supreme Court on the question of anonymous-speech rights (excluding those decisions in the unique area of campaign speech) and all the lower court case law applying that anonymous-speech doctrine to the subpoena context, see infra Section III.D, appear to be applying strict scrutiny, it is possible that the way in which the relevant subpoena law is statutorily structured might have an impact on the standard employed by courts when they are faced with an infringement of the anonymous-speech right. The Supreme Court cases in the area of anonymous-speech rights have all involved direct infringement of the right through statutory bans on speaking anonymously. See, e.g., McIntyre, 514 U.S. at 334 (striking down a direct ban on anonymous literature); Talley v. California, 362 U.S. 60 (1960) (striking down a direct ban on anonymous leafleting). It is possible that a generally applicable subpoena statute might be viewed as an incidental rather than direct infringement on anonymous speech, and thus there is a case to be made that intermediate rather than strict scrutiny would apply. See, e.g., United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (holding that intermediate scrutiny applies when neutral laws create "incidental limitations on First Amendment freedoms"). None of the subpoena cases discussed in Section III.D distinguish the infringement of the right in these ways and all appear to be adopting the broader strict scrutiny framework. See infra note 370. This is perhaps because the analogy of forced speaker identification to content control is only one of the many theoretical moorings for the status of anonymous speech as a fundamental right, or perhaps because a statute authorizing a subpoena ad testificandum is viewed as a direct rather than incidental regulation of speech. In either event, a fundamental right to speak anonymously is unquestionably at stake when a subpoena is issued for the name of a confidential source; the existence of this right should constitute the starting point for the analysis of the propriety of unmasking the source, under already-established constitutional doctrines with contours that are significantly clearer than the ambiguous post-Branzburg approach.

(281.) See supra Part I.

(282.) See, e.g., Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (explaining that statutes inhibiting First Amendment freedoms that do not provide "ascertainable standards of conduct" impede individuals' ability to lawfully order their activities); NAACP v. Button, 371 U.S. 415, 432-33 (1963) (citing vagueness and overbreadth as impeding fairness in the application of the law and limiting the exercise of First Amendment freedoms).

(283.) Compare McIntyre, 514 U.S. at 357 (describing how anonymous-speech protection serves the "purpose ... of the First Amendment ... to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society"), with Branzburg v. Hayes, 408 U.S. 665, 695 (1972) (arguing that even if some "informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification," this interest is weaker than the interest in prosecuting crime).

(284.) See Branzburg, 408 U.S. at 695 (acknowledging that exposure of an informant may threaten the informant's :job security, personal safety, or peace of mind"); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595 (1st Cir. 1980) ("[T]here may be cases where revelation of sources will threaten physical or other harm...."); Cervantes v. Time, Inc., 464 F.2d 986, 989 (8th Cir. 1972) (finding a reporter protected under newsgathering right but noting that reporter argued that divulging names would "subject his informants to retaliation or reprisals and physical danger").

(285.) See supra note 213.

(286.) See Branzburg, 408 U.S. at 720 (Douglas, J., dissenting) ("Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.").

(287.) See Talley v. California, 362 U.S. 60, 64 (1960).

(288.) See McIntyre, 514 U.S. at 342 ("[T]he interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.").

(289.) See supra notes 209-210 and accompanying text.

(290.) See, e.g., Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981) ("Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices."); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st Cir. 1980) (noting the "potential harm to the free flow of information"); Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) ("A journalist's inability to protect the confidentiality of sources .... will seriously erode the essential role played by the press in the dissemination of information."); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977) (noting that there is "an underlying public interest" in "publications which communicate to the public information and opinion"); Cervantes v. Time, Inc., 464 F.2d 986, 992 n.9 (8th Cir. 1972) ("[T]he free flow of news obtainable only from anonymous sources is likely to be deterred absent complete confidentiality").

(291.) See Jones, Litigation, Legislation, and Democracy, supra note 30, at 617.

(292.) See id.

(293.) See id.

(294.) Barrows v. Jackson, 346 U.S. 249, 255 (1953); see also Powers v. Ohio, 499 U.S. 400, 410 (1991) ("In the ordinary course, a litigant must assert his or her own legal rights and interests...."); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263 0977) ("In the ordinary case a party is denied standing to assert the rights of third persons."); Singleton v. Wulff, 428 U.S. 106, 113 (1976) (plurality opinion) ("Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation.").

(295.) Richard H. Fallon, Jr., Commentary, As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1359 (2000) (citation omitted).

(296.) Id. at 1359-60. Some justices have argued that the expanded scope that the Court has given to third-party standing in recent years is doctrinally unwise, but they are in the minority. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 135-36 (2004) (Thomas, J., concurring) ("[I]t is ... doubtful ... whether third-party standing should sweep as broadly as our cases have held that it does.").

(297.) Although increasingly generous, the third-party standing doctrine remains a significant enough prudential limitation that it will bar assertions of the right by individuals with minor or insubstantial relationships with the would-be anonymous speaker or by those with no underlying interests of their own. See Powers, 499 U.S. at 410-11. This Article's proposed approach, which does not require that the individual who promised confidentiality to the speaker be a reporter, could be expected to be invoked in other contexts and might be criticized for creating the potential for larger numbers of subpoenaed individuals to refuse to provide information on the grounds that the information was conveyed to them by a speaker who requested anonymity. The third-party standing rules might be expected to act as a meaningful brake on what might otherwise be a more sweeping scope of the approach, thus producing both doctrinal consistency and practical workability.

(298.) John C. Yang, Standing ... in the Doorway of Justice, 59 GEO. WASH. L. REV. 1356, 1361 (1991) (citation omitted).

(299.) Singleton, 428 U.S. at 114 (plurality opinion).

(300.) Id. at 115.

(301.) See Branzburg v. Hayes, 408 U.S. 665, 720-22 (1972) (Douglas, J., dissenting) (noting that constraints on sources also constrain reporters).

(302.) Some states that developed a common-law reporter's privilege have based their analysis on Wigmore's test for determining whether an evidentiary privilege ought to be adopted, which mandates that "the relation must be one which in the opinion of the community ought to be sedulously fostered" and the "[t]he injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation" 8 WIGMORE, supra note 7, [section] 2285 (emphasis omitted). See, e.g., State v. Kiss (In re Contempt of Wright), 700 P.2d 40, 48 (Idaho 1985); Senear v. Daily Journal-Am., 641 P.2d 1180, 1183 (Wash. 1982) (en banc). Other courts have emphasized the importance of the reporter--informant relationship in their case law employing similar principles. See, e.g., Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175, 180 (Ga. Ct. App. 2001); Sands v. News Am. Publ'g Inc., 560 N.Y.S.2d 416, 423-24 (App. Div. 1990); State v. Geis, 441 N.E.2d 803, 808 (Ohio Ct. App. 1981); State v. Ventura, 101 Ohio Misc. 2d 15, 19 (Ct. Com. P1. 1999).

(303.) See, e.g., MINN. SWAT. ANN. [section] 595.022 (West 2010) ("The purpose of [the state shield law] is to insure [sic] and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources,"); WASH. H.R. OFFICE OF PROGRAM RESEARCH, BILL ANALYSIS: HB 1366, H.R. 60 (2007), available at http://apps.leg.wa.gov/ documents/billdocs/2007-08/Pdf/Bill%20Reports/House/1366.HBA%2007.pdf; WASH. S. COMM. ON THE JUDICIARY, SENATE BILL REPORT: HB 1366, S. 60 (2007), available at http://apps.leg.wa.gov/documents/billdocs/2007-08/Pdf/Bill%20Reports/Senate/1366.SBR.pdf (calling the relationship between reporters and sources one of the "classes of relationships or communications within those relationships [that] are deemed of such importance that they should be protected").

(304.) See, e.g., In re Contempt of Wright, 700 P.2d at 48 (recognizing that the relationship between reporters and sources should be protected because the work that it produces is of "utmost importance"); Sprague v. Walter, 543 A.2d 1078, 1082 (Pa. 1988) ("Because our society is also one that encourages an open interchange of ideas between its members and seeks to maintain the free flow of such ideas to the media, there is [a] ... strong societal purpose in fostering uninhibited disclosure between individuals and the media."); In re Taylor, 193 A.2d 181, 185 (Pa. 1963) (calling statute granting a reporter's privilege "a wise and salutary declaration of public policy whose spiritual father is the revered Constitutionally ordained freedom of the press"); Senear, 641 P.2d at 1183 (noting that the relationship is valuable "[g]iven both the complex and diffuse nature of modern society, the need for citizens in a representative democracy to make considered judgments, and the increasing importance of journalists to convey information to citizens").

(305.) See, e.g., Cont'l Cablevision, Inc. v. Stoner Broad. Co., 583 F. Supp. 427, 433 (E.D. Mo. 1984) ("The rationale [for the reporter's privilege] is akin to other privileges, such as the attorney-client privilege or the privilege of the government in a criminal case to withhold the identity of its informants."); Anderson v. Nixon, 444 F. Supp. 1195, 1200 (D.D.C. 1978) (comparing the reporter's privilege with the attorney-client and informant privileges); Wheeler v. Goulart, 593 A.2d 173, 181-82 (D.C. 1991) (per curiam) (agreeing with "cases which have noted the similarity between a reporter's privilege and the attorney-client and informant privilege," and explaining that "[b]oth the attorney-client and the informant privilege are inextricably tied to the free flow of information'); Payton v. N.J. Tpk. Auth., 691 A.2d 321, 331-32 (N.J. 1997) (describing "certain confidential communications [that are deemed to be] qualitatively different and thus deserving of an evidentiary privilege" and listing as examples the "newsperson's privilege" along with the physician-patient, clergy-penitent, and attorney-client privileges); In re Knight-Ridder Broad., Inc. v. Greenberg, 511 N.E.2d 1116, 1118 (N.Y. 1987) (explaining that "the entire thrust of the Shield Law was aimed at encouraging a free press by shielding those communications given to the news media in confidence" and in this regard was similar to other privileges which are generally based on confidential relationships (citation omitted)); Sprague, 543 A.2d at 1082 (noting that the reporter's privilege is akin to others involving "parties sharing a unique relationship" and citing the attorney--client, spousal, physician-patient, and priest-penitent privileges as examples); In re Taylor, 193 A.2d at 185 (noting that the value placed on protecting sources is the same "public policy" value long placed on various other relationships, including those with attorneys and clergy).

(306.) Many states have placed their shield laws either next to or in a list with other types of evidentiary privileges, such as the spousal, medical, and clerical privileges, signaling that the reporter's privilege similarly arises from a significantly protected relationship. See, e.g., ARIZ. REV. STAT. ANN. [section] 12-2237 (2003); CAL. EVID. CODE [section] 1070 (West 2009); CONN. GEN. STAT. [section] 52-146t (2009); FLA. STAT. [section] 90.5015 (2012); GA. CODE ANN. [section] 24-9-30 (2013); 735 ILL. COMP. STAT. 5/8-901 (2011); IND. CODE ANN. [section][section] 34-46-4-1, 34-46-4-2 (West 2011); MD. CODE ANN., CTS. & JUD. PROC. [section] 9-112 (LexisNexis Supp. 2012); MONT. CODE ANN. [section] 26-1-902 (2011); NEV. REV. STAT. [section] 49.275 (2011); N.J. STAT. ANN. [section] 2A:84A-21 (West 2011); N.M. STAT. ANN. [section] 38-6-7 (LexisNexis 1998); N.C. GEN. STAT. [section] 8-53.11 (2011); OKLA. STAT. tit. 12, [section] 2506 (2011); 42 PA. CONS. STAT. ANN. [section] 5942 (West 2000); S.C. CODE ANN. [section] 19-11-100 (Supp. 2011); TENN. CODE ANN. [section] 24-1-208 (2000); UTAH R. EVID. 509. Other states have explicitly compared the reporter-source relationship to these other important confidential relationships in their legislative histories. See, e.g., FLA. STAT. [section] 90.5015 (analogizing to attorney-client, husband-wife, trade secrets, and psychotherapist-patient privileges); Transcript of Apr. 12, 2006, Sess. of Conn. H.R., CONN. GEN. ASSEMBLY, http:// search.cga.state.ct.us/adv/(click "Session Transcripts" box; then enter "04/12/2006" in "Title" field; then click "Search") (last retrieved Jan. 3, 2013) (analogizing to privileges between counselor and patient or husband and wife); Transcript of Mar. 10, 2006, Hearing of Conn. H.R. Judiciary Comm., CONN. GEN. ASSEMBLY, http://search.cga.state.ct.us/adv/(click "Public Heating Transcripts" box; then enter "03/10/2006" in "Title" field; then click "Search") (last retrieved Jan. 3, 2013) (analogizing to attorney--client and psychotherapist-patient privileges).

(307.) See, e.g., Powers v. Ohio, 499 U.S. 400, 415 (1991) (finding third-party standing for criminal defendants on behalf of excluded jurors); Carey v. Population Servs. Int'l, 431 U.S. 678, 683-84 (1977) (holding that a corporation selling contraceptives via mail-order has third-party standing on behalf of potential customers); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263-64 (1977) (finding that a housing-development corporation challenging zoning decisions allegedly motivated by racial discrimination has third-party standing, despite not being directly impacted by the alleged discrimination); Singleton v. Wulff, 428 U.S. 106, 117-18 (1976) (plurality opinion) (holding that an abortion doctor has third-party standing on behalf of patients); Craig v. Boren, 429 U.S. 190, 194-97 (1976) (holding that a beer vendor has third-party standing to sue on behalf of patrons against whom a law allegedly discriminates); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (finding third-party standing for a physician and Planned Parenthood executive on behalf of married clients seeking contraceptives).

(308.) E.g., Singleton, 428 U.S. at 115-16 (plurality opinion).

(309.) Id.

(310.) Yang, supra note 298, at 1361-63 (citations omitted).

(311.) Singleton, 428 U.S. at 116.

(312.) Id.

(313.) See Note, Overbreadth and Listeners' Rights, 123 HARV. L. REV. 1749, 1749 (2010) ("The Supreme Court has permitted third parties to assert the legal rights of others who are their customers, clients, patients, jurors, and even voters" (footnotes omitted)).

(314.) Fallon, supra note 295, at 1364; see also William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 246 (1988) (arguing that third-party standing cases should be seen simply as a "determination of whether plaintiffs have the legal right to enforce the duty in question" with the "touchstone [being] the nature of the underlying right, and ... whether a grant of standing will further the values inherent in that right").

(315.) See Ashley I. Kissinger & Katharine Larsen, Untangling the Legal Labyrinth: Protections for Anonymous Online Speech, J. INTERNET L., Mar. 2010, at 1, 17 n.23 (listing examples of cases in which third parties were allowed standing).

(316.) Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 492 n.4 (1982).

(317.) Fletcher, supra note 314, at 246.

(318.) For an excellent overview of the legal treatment of anonymous online speech, see Kissinger & Larsen, supra note 315.

(319.) See Victoria Smith Ekstrand, Online News: User Agreements and Implications for Readers, 79 JOURNALISM & MASS COMM. Q. 602, 602 (2002) (reporting that "[o]f the nation's 1,483 daily newspapers [in 2002], more than 1,200 ha[d] Internet news sites" and that the majority had user agreements allowing "participat[ion] in interactive news forums"); Jane E. Kirtley, Mask, Shield, and Sword: Should the Journalist's Privilege Protect the Identity of Anonymous Posters to News Media Websites?, 94 MINN. L. REV. 1478, 1488-89 (2010) ("As news organizations have experimented with ways to encourage their readers to interact with their online news products, one of the most popular options has been to allow readers to post comments adjacent to a news story.").

(320.) See, e.g., Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL 4802567, at *2 (W.D. Mo. Dec. 9, 2009); Enterline v. Pocono Med. Ctr., 751 E Supp. 2d 782, 783 (M.D. Pa. 2008); Maxon v. Ottawa Publ'g Co., 929 N.E.2d 666, 669 (Ill. App. Ct. 2010).

(321.) Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn from John Doe?, 50 B.C.L. REV. 1373, 1374-76 (2009) (discussing libel suits involving anonymous online posters and how those posters' identities can be uncovered).

(322.) See, e.g., NLRB v. Midland Daily News, 151 F.3d 472, 473 (6th Cir. 1998) (adjudicating the National Labor Relations Board's suit to identify the source of an anonymous advertisement); Salehoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210, 1213 (W.D. Wash. 2010) (alleging, inter alia, trademark infringement); USA Techs., Inc. v. Doe, 713 F. Supp. 2d 901,904 (N.D. Cal. 2010) (alleging that the anonymous poster violated the Securities Exchange Act of 1934).

(323.) Individuals who claim injuries arising from the anonymous communications on a website are most likely to bring their cause of action against the anonymous poster and not the website owner because section 230 of the Federal Communications Decency Act gives website owners immunity from most liability for the content of third-party posts. See 47 U.S.C. [section] 230(c)(1) (2012).

(324.) Kissinger & Larsen, supra note 315, at 16; see also id. ("Alternatively, the suit may be filed only against, or also against, the Web site or ISP, and the plaintiff serves a discovery request on those parties. In a copyright dispute, a plaintiff may obtain issuance of a prelitigation subpoena under the Digital Millennium Copyright Act (DMCA). In criminal matters, the poster's identity may be sought through a subpoena issued by the grand jury, prosecutor, or defendant" (citing illustrative cases)).

(325.) Indeed, so close is the parallel that reporter's privilege statutes have sometimes successfully been invoked by these communicative entities. See id. at 22.

(326.) Id. at 16.

(327.) Id.; see also id. at 25 n.12 (citing cases).

(328.) Jones, Media Subpoenas, supra note 8, at 382 (reporting that newsroom leaders described recent subpoenas as "fishing expedition[s]" and "sweeping in scope").

(329.) Kissinger & Larsen, supra note 315, at 16 (internal quotation marks omitted) (noting that "[b]ecause many people register using fake names and non-descript e-mail addresses, the IP address is often the most valuable piece of information sought").

(330.) Id.

(331.) E.g., McVicker v. King, 266 F.R.D. 92, 94 (W.D. Pa. 2010); Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782, 787 (M.D. Pa. 2008); Dendrite Int'l, Inc. v. Doe, No. 3, 775 A.2d 756, 765 (N.J. Super. Ct. App. Div. 2001).

(332.) See, e.g., In re Anonymous Online Speakers, 611 F.3d 653, 656-57 (9th Cir. 2010).

(333.) See, e.g., Anthony Ciolli, Technology Policy, Internet Privacy, and the Federal Rules of Civil Procedure, 11 YALE J.L. & TECH. 176, 185-88 (2008), http://yjolt.org/ sites/default/files/-11-YJOLT-176.pdf; Lidsky, supra note 321, at 1380; Craig Buske, Note, Who Is John Doe and Why Do We Care?: Why a Uniform Approach to Dealing with John Doe Defamation Cases Is Needed, 11 MINN. J.L. SCL & TECH. 429, 451-52 (2010); Matthew Mazzotta, Note, Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C.L. REV. 833, 859-64 (2010).

(334.) Compare Dendrite Int'l, 775 A.2d at 760 (applying a prima facie standard), with Best W. Int'l, Inc. v. Doe, No. CV-06-1537-PHX-DGC, 2006 WL 2091695, at *4 (D. Ariz. July 25, 2006) (applying a summary judgment standard), and Doe No. 1 v. Cahill, 884 A.2d 451,460 (Del. 2005) (same).

(335.) See, e.g., McVicker, 266 ER.D. at 95; Enterline, 751 F. Supp. 2d at 787.

(336.) See, e.g., In re Rule 45 Subpoena Issued to Cablevision Sys. Corp. Regarding IP Address 69.120.35.31, No. MISC 08-347 (ARR)(MDG), 2010 WL 2219343, at *5 (E.D.N.Y. Feb. 5, 2010); Elektra Entm't Grp., Inc. v. Doe, No. 5:08-CV-115-FL, 2008 WL 5111885, at *7 (E.D.N.C. Sept. 26, 2008).

(337.) Elektra Entm't Grp., 2008 WL 5111885, at *7.

(338.) McVicker, 266 F.R.D. at 95.

(339.) 751 F. Supp. 2d 782, 783 (M.D. Pa. 2008).

(340.) Enterline, 751 F. Supp. 2d at 783.

(341.) Id.

(342.) Id. at 786.

(343.) Id.; see also id. at 785-86 (noting the risks of retaliation and damage to relationships that motivated the anonymity).

(344.) Id. at 786.

(345.) Id.

(346.) Id.

(347.) Id.

(348.) Id.

(349.) 266 ER.D. 92 (W.D. Pa. 2010).

(350.) McVicker, 266 ER.D. at 93.

(351.) Id. at 95.

(352.) Id. at 96.

(353.) Id.

(354.) See id.; Enterline v. Pocono Med. Ctr., 751 E Supp. 2d 782, 786 (M.D. Pa. 2008); In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. 26, 32 (2000), rev'd sub nom. Am. Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E.2d 377 (Va. 2001).

(355.) See, e.g., Enterline, 751 F. Supp. 2d at 786 (noting that preventing the newspaper from asserting the anonymity rights of the speaker "will ... spark[] reduced reader interest and a corresponding decline in advertising revenues"); In re Subpoena Duces Tecum to Am. Online, Inc., 52 Va. Cir. at 32 (holding that an ISP had standing to assert the First Amendment rights of subscribers who made anonymous posts because if it "did not uphold the confidentiality of its subscribers, as it has contracted to do, absent extraordinary circumstances, one could reasonably predict that [its] subscribers would look to AOL's competitors for anonymity").

(356.) See, e.g., Carolyn Nielsen, Newspaper Journalists Support Online Comments, NEWSPAPER RES. J., Winter 2012, at 86, 94-98 (citing studies indicating that reporters think poorly of online commenters); Arthur D. Santana, Online Readers' Comments Represent New Opinion Pipeline, NEWSPAPER RES. J., Summer 2011, at 66, 76 (reporting that journalists "at the country's largest U.S. daily newspapers generally take a dim view of the online reader comments" and that "[m]any are troubled by their content"); Lola Burnham & William H. Freivogel, The Anonymous Poster: Today's Hybrid of the Anonymous Pamphleteer and Anonymous Source?, ALL ACADEMIC, INC. 5 (Aug. 4, 2010), http://convention2.allacademic.com/ one/www/www/index.php?cmd=Download+Document&key=unpublished_manuscript&file _index=2&pop_up=true&no_click_key=true&attachment_style=attachment&PHPSESSiD= mht3chpm48j0j0p42s5obb79q3 (quoting a New York Times lawyer as saying that anonymous posts are often "nutty" and "defamatory" (internal quotation marks omitted)).

(357.) Kirtley, supra note 319, at 1507 ("Anonymous ... postings encourage[] robust debate and help[] promote the First Amendment interest of 'protect[ing] unpopular individuals from retaliation--and their ideas from suppression.'" (quoting McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995))); Ashley I. Kissinger & Katharine Larsen, Shielding Jane and John: Can the Media Protect Anonymous Online Speech?, COMM. LAW., July 2009, at 4, 4 ("Anonymous commentary--both online and off--is credited with identifying solutions for political, social, and cultural challenges; promoting unconventional ideas; and catalyzing community development and transformation").

(358.) See Santana, supra note 356, at 76 ("A vast majority [of journalists responding to the survey] said they at least occasionally got story ideas from the comments....").

(359.) See Nielsen, supra note 356, at 98 (describing reporters' "extreme problem" with the "level of bigotry in anonymous online comments").

(360.) Kirtley, supra note 319, at 1507-08 (quoting a journalist as saying that "anonymity on the Web offends most journalists I know," both because "their own names go on everything they write" and because it is inconsistent with decades-long practices of identifying and confirming authorship of letters to the editor (quoting Connie Schultz, Web Sites' Anonymity Brings Out the Worst in Some Posters, PLAIN DEALER (Cleveland, Ohio), Sept. 27, 2009, http://www.cleveland.com/schultz/index.ssf/2009/09/web-sites-anonymity-brings-out.html) (internal quotation marks omitted)).

(361.) See, e.g., Rem Rieder, No Comment: It's Time for News Sites to Stop Allowing Anonymous Online Comments, AM. JOURNALISM REV., Summer 2010, at 2 (arguing that newspapers should "end the practice of allowing unnamed comments" because it is "flat-out wrong" and "causing headaches for news outlets"); Santana, supra note 356, at 77-78 (noting the beginning of a trend among newspapers to disallow anonymity).

(362.) E.g., Amy Kristin Sanders & Patrick C. File, Giving Users a Plain Deal: Contract-Related Media Liability for Unmasking Anonymous Commenters, 16 COMM. L. & POL'Y 197, 199-200 (2011) ("Unmasking anonymous commenters threatens to chill the speech of other users, who fear they might be next.").

(363.) See supra notes 266-268 and accompanying text.

(364.) Burnham & Freivogel, supra note 356, at 2; see also Jones, Empirical Study, supra note 8, at 651.

(365.) Burnham & Freivogel, supra note 356, at 2.

(366.) Some have speculated that it is tactically unwise for website operators and ISPs to vigorously assert the individual speaker's First Amendment rights because it may threaten their ongoing immunity under section 230 of the Communications Decency Act, as legislators see aggrieved parties left with no redress from either the publisher or the initial speaker. Kissinger & Larsen, supra note 315, at 17; see also Jennifer O'Brien, Note, Putting a Face to a (Screen) Name: The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers in Online Defamation Cases, 70 FORDHAM L. REV. 2745, 2757 (2002).

(367.) See, e.g., McVicker v. King, 266 F.R.D. 92, 94-95 (W.D. Pa. 2010) (noting, in the context of an effort to identify a nonparty witness, that "[t]he United States Supreme Court has consistently held that 'an author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment'" (quoting McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995))); Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782, 787-88 (M.D. Pa. 2008) (quoting McIntyre in the same context); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1091 (W.D. Wash. 2001) (stating that the effort to unmask an anonymous online speaker implicated "[t]he right to the freedom of speech ... enshrined in the First Amendment to the United States Constitution," and that "[t]he anonymity of Internet speech is protected by the First Amendment"); Doe No. 1 v. Cahill, 884 A.2d 451,456 (Del. 2005) ("It is clear that speech over the internet is entitled to First Amendment protection. This protection extends to anonymous internet speech" (footnotes omitted)).

(368.) See, e.g., 2TheMart.com, 140 F. Supp. 2d at 1092 ("The 'ability to speak one's mind' on the Internet 'without the burden of the other party knowing all the facts about one's identity can foster open communication....'" (quoting Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999))); Cahill, 884 A.2d at 457 (noting the potential that a plaintiff may be motivated by a desire to "subject [the anonymous speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes" (quoting Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse in Cyberspace, 49 DUKE L.J. 855, 890 (2000))).

(369.) See, e.g., Enterline, 751 F. Supp. 2d at 787 ("[T]he interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry." (quoting McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995))); 2TheMart.com, 140 F. Supp. 2d at 1091 ("The free exchange of ideas on the Internet is driven in large part by the ability of Internet users to communicate anonymously."); Cahill, 884 A.2d at 455-56 (describing the potential of anonymous internet speech to "allow[] more and diverse people to engage in public debate"); Dendrite Int'l, Inc. v. Doe, No. 3, 775 A.2d 756, 765 (N.J. Super. Ct. App. Div. 2001) (quoting the "marketplace of ideas" language from McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995))).

(370.) McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960); see also McVicker, 266 F.R.D. at 94 (citing Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 200 (1999); McIntyre, 514 U.S. at 342; and Talley, 362 U.S. at 65) ("The United States Supreme Court has consistently held that 'an author's decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment.'" (quoting McIntyre, 514 U.S. at 342)); 2TheMart.com, 140 E Supp. 2d at 1092 (citing Buckley, 525 U.S. at 200; McIntyre, 514 U.S. at 357; and Talley, 362 U.S. at 65) ("A component of the First Amendment is the right to speak with anonymity."); Cahill, 884 A.2d at 456 ("Anonymous internet speech in blogs or chat rooms in some instances can become the modern equivalent of political pamphleteering.... '[A]nonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent.'" (quoting McIntyre, 514 U.S. at 357)); Dendrite Int'l, 775 A.2d at 760 (citing Buckley, 525 U.S. at 182, 197-99; McIntyre, 514 U.S. 334; and Talley, 362 U.S. 60) ("It is well-established that rights afforded by the First Amendment remain protected even when engaged in anonymously.").

(371.) Virginia v. Black, 538 U.S. 343, 358 (2003) ("The protections afforded by the First Amendment, however, are not absolute...."); Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) ("'[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message....' However, this principle, like other First Amendment principles, is not absolute?' (alteration in original) (citations omitted) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983)) (internal quotation marks omitted)).

(372.) McVicker, 266 F.R.D. at 94 ("[A]nonymous speech on the Internet, like speech from identifiable sources, does not have absolute protection"); Dendrite Int'l, 775 A.2d at 760 (noting the need to "strik[e] a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation"); see also Cahill, 884 A.2d at 456 ("[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances." (alteration in original) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)) (internal quotation marks omitted)).

(373.) See, e.g., Cahill, 884 A.2d at 457.

(374.) See, e.g., McVicker, 266 ER.D. at 95; Enterline, 751 E Supp. 2d at 787; 2TheMart.com, 140 E Supp. 2d at 1095; Mobilisa Inc. v. Doe 1, 170 P.3d 712, 720 (Ariz. Ct. App. 2007).

(375.) Under the proposed broader adoption of this approach, this starting point is likely to prove important in cases in which the government asserts that the underlying anonymous speech may be illegal or lack fuller First Amendment protection for other reasons. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("A government entity has broader discretion to restrict speech when it acts in its role as employer."); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (per curiam) (finding a CIA employment agreement subjecting proposed publications to prior review a "reasonable means for protecting" the "compelling interest" in limiting disclosure of classified information). Scholars continue to debate whether leaks by government employees should receive some protection based on potential value to the public interest. See, e.g., Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 IND. L.J. 233, 240-62 (2008) (tracing history of government communication with public through leaks and criticizing the executive branch's "virtually unbridled power to control the flow of national security information to the public" under whistleblower statutes and other mechanisms). A full exploration of leaks that appear to violate statutory mandates against national-security disclosures or to be within other constitutionally recognized limitations on the speech of government employees is beyond the scope of this Article but worthy of exploration. It should suffice to note that it would be inconsistent with the approach taken by courts in anonymous-online-poster cases and with the overarching doctrinal insistence upon the value of anonymity for a court to unmask an anonymous source on the bare assertion that the speaker's underlying speech may be punishable.

(376.) Lidsky, supra note 321, at 1377; see also Cahill, 884 A.2d at 457 (describing plaintiffs' efforts to unmask anonymous speakers "even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision").

(377.) Kissinger & Larsen, supra note 315, at 18-19 (surveying the cases and reporting that "[t]he prevailing view" in expressive-content cases "is that the plaintiff should be required to put forth sufficient evidence to support a prima facie case or, put differently, to withstand a hypothetical summary judgment motion," and noting that, by "essentially requiting sufficient evidence to create a jury issue on the underlying claim ... both tests are very speech protective"); see also id. at 19 (surveying the cases and noting that in cases where "the speech at issue is challenged on grounds that it infringes intellectual property tights or otherwise constitutes a business tort, many courts have applied--or at least nominally applied--either a motion-to-dismiss standard or a good cause standard").

(378.) McVicker, 266 F.R.D. at 95; see also 2TheMart.com, 140 F. Supp. 2d at 1095 ("[N]on-party disclosure is only appropriate in the exceptional case where the compelling need for the discovery sought outweighs the First Amendment tights of the anonymous speaker.").

(379.) 2TheMart.com, 140 F. Supp. 2d at 1095, quoted in Enterline, 751 E Supp. 2d at 787.

(380.) Branzburg v. Hayes, 408 U.S. 665, 743 (1972) (Stewart, J., dissenting) (arguing that a journalist should be privileged from revealing the identity of a confidential source unless the government "(1) show[s] that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of the law; (2) demonstrate[s] that the information sought cannot be obtained by alternative means less destructive of First Amendment tights; and (3) demonstrate[s] a compelling and overriding interest in the information" (footnote omitted)).

(381.) See, e.g., Enterline, 751 F. Supp. 2d at 789 ("Plaintiff is able to obtain the information needed to pursue her claims through means that do not encroach on the First Amendment rights of the anonymous commentators....").

(382.) Kirtley, supra note 319, at 1482 ("[A] variety of tests have emerged from the lower courts,"); see also Kissinger & Larsen, supra note 357, at 4 ("[T]he law in this area remains in relative infancy, and media companies fighting these battles are still addressing numerous open questions.").

(383.) See, e.g., Mark Fenster, Disclosure's Effects: WikiLeaks and Transparency, 97 IOWA L. REV. 753, 758-69 (2012) (describing WikiLeaks' pattern of "distributing purloined data anonymously" and the criticisms of its practices); Richard Perez-Pena, News Sites Rethink Anonymous Online Comments, N.Y. TIMES, Apr. 12, 2010, at B1, http://www.nytimes.com/2010/04/12/technology/12comments.html (describing systems developed by some major publications that give more prominence to named speakers, require registration before posting comments, review comments before they go online, or do not allow comments at all).

RonNell Andersen Jones, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. The author thanks Lisa Grow Sun, David Moore. Lyrissa Lidsky, and Mary-Rose Papandrea for their valuable feedback; Carla Crandall. Hannah Hatch, Julie Slater, and Rebecca Van Tassell for their research assistance; and the law faculties at Boston College, University of Utah, American University, and Brigham Young University for their comments on the work in colloquium presentations. Thanks also to the participants of the 2012 Harvard Junior Faculty Forum, and especially to Richard Fallon, Jed Rubenfeld, and Ian Ayres for their thoughtful suggestions.

Article Details

Printer friendly Cite/link Email Feedback
Title Annotation:	II. An Anonymous-Speech Analysis A. Anonymous-Speech Doctrine through Conclusion, with footnotes, p. 1250-1282
Author:	Jones, RonNell Andersen
Publication:	Michigan Law Review
Date:	May 1, 2013
Words:	26843
Previous Article:	Rethinking reporter's privilege.
Next Article:	Standing's expected value.
Topics:	Confidential communications Laws, regulations and rules Press Freedom of the press Laws, regulations and rules Journalistic privilege Laws, regulations and rules