A reporter promises a source that their name will never come out. The source hands over something explosive. The story runs. And then a prosecutor sends the reporter a subpoena and asks, under oath, the one question the whole thing depended on: who told you? * Most people assume there is a rule for this. There is. It is just not the rule most people assume. * ### The Supreme Court answered this, and the answer was no * The case is Branzburg v. Hayes, decided on June 29, 1972. Three reporters had refused to testify to grand juries: Paul Branzburg of Kentucky, who had written about people making and using illegal drugs; Paul Pappas of Massachusetts; and Earl Caldwell of California, both of whom had reported on the Black Panthers. * They argued that the First Amendment gave them a privilege to protect their sources, because a source who can be unmasked by a subpoena is a source who never talks in the first place. * The Court said no, 5-4. Justice Byron White wrote for the majority, joined by Chief Justice Burger and Justices Blackmun, Powell and Rehnquist. The holding is blunt: the First Amendment does not relieve a reporter of the obligation every other citizen has to answer a grand jury's relevant questions. Justices Douglas and Stewart dissented, Stewart joined by Brennan and Marshall. * So on the federal constitutional question, the answer is settled and it has been settled for over fifty years. A reporter has no special constitutional right to refuse. * ### The concurrence that quietly undid half of it * Here is the strange part, and it is why lawyers still argue about a case that was decided 5-4 in 1972. * Justice Lewis Powell was in the majority — his vote is the fifth — but he wrote a short separate concurrence saying a reporter's claim of privilege should be weighed case by case, balancing press freedom against the government's actual need for the information. * That is not what the majority opinion says. It is arguably not compatible with what the majority opinion says. And because Powell was the deciding vote, lower courts spent the next half-century reading Branzburg through his eyes rather than White's — carving out balancing tests, qualified privileges and case-by-case exceptions out of a ruling that appeared to reject exactly that. * The practical result is a mess: what happens to a reporter who refuses depends enormously on which court they are standing in. * ### What actually protects reporters: state law, not the Constitution * The real protection is statutory, and it is a patchwork. * The large majority of US states plus the District of Columbia give journalists some form of shield-law protection — the exact count varies between sources depending on whether you include states that protect reporters through court decisions rather than a statute. Either way, it is most of the country. * But "protected" means wildly different things state to state. Some shield laws are absolute for the identity of a source. Others are qualified, meaning a judge can override them if the information is important enough and unavailable elsewhere. And the biggest difference of all is the definition question: who counts as a journalist? Some statutes are written around employees of traditional news organisations. Others are broad enough to cover freelancers, independents and people who publish online. * That definition is not a technicality. It decides whether the person doing the actual accountability journalism in a town with no newspaper left has any protection at all. * ### There is still no federal shield law * Federal courts, federal grand juries, federal prosecutors: state shield laws do not bind them. And Congress has never passed a national equivalent. * The vehicle is the PRESS Act — the Protect Reporters from Exploitative State Spying Act — a bipartisan bill that would establish a federal journalist-source privilege with carve-outs for terrorism, imminent violence and cases where the journalist is themselves a suspect. It has passed the House and then stalled in the Senate. In late 2024, before taking office, Donald Trump posted that Republicans must kill the bill. It has not become law. * So the honest answer to "is there a federal shield law?" is: no, there is a bill, and the bill keeps not passing. * ### What refusing actually costs * This is where it stops being an abstraction. * In 2005, New York Times reporter Judith Miller was subpoenaed in the investigation into who leaked the identity of CIA officer Valerie Plame. She refused to name her source. A federal judge held her in civil contempt, and she went to jail. * She spent 85 days there. She was released on September 29, 2005, after her source — Lewis "Scooter" Libby, chief of staff to Vice President Dick Cheney — personally confirmed that she was released from her promise of confidentiality. Then she testified. * The Miller case is genuinely uncomfortable for everyone. Press-freedom advocates point out that she went to jail rather than break a promise, which is the entire principle in action. Critics point out that her source was a senior White House official and that the leak served the administration, which makes it a strange hill for press freedom to die on — the privilege designed to protect whistleblowers being used to protect the powerful. * Both things are true at once, and that is exactly why the law here is such a mess. The same shield that covers a nurse exposing conditions in a care home covers a political operative planting a story. You cannot write a rule that protects one and not the other without letting a judge decide which is which — and letting a judge decide is precisely what a shield law is supposed to prevent. * ### What this means when you read a story * When you see "a source who spoke on condition of anonymity", you are looking at a promise the reporter may not legally be able to keep. That is worth knowing, because it tells you something about the size of the thing being protected. * Ask the question that actually matters, the one that separates a whistleblower from a spin operation: what does this source risk by talking? A source risking their job, their liberty or their safety is a source who needed the anonymity. A source who gains from the story and risks nothing is using it. The wording rarely tells you which one you have — but the direction the story pushes usually does. * And when a reporter does end up in front of a judge refusing to answer, notice who is asking. The subpoena is almost never about the reporter. It is about finding the person inside the institution who talked.