A number of high profile court orders in the recent past have demanded reporters divulge confidential sources or face contempt charges.  In response, both the House and the Senate have considered versions of a federal "reporters’ shield" law to supplement the common law privilege often extended to reporters to keep sources confidential.  This topic provokes a number of questions about the role of the press and whether it should be treated more leniently, the issue of who is "press," the proper balance of governmental confidentiality and the "public right to know," and the ability of law enforcement and national security experts to pursue leakers of confidential or classified information. 

Is a federal reporters’ shield law a good idea?  How broadly should it reach?  Should it protect professional journalists only or extend to ad hoc writers and bloggers, and if so, where and how is a line to be drawn?  Are there other ways to balance reporters' and sources' interests with law enforcement?  Is there a better mechanism than contempt to employ?

With time or overuse, even the most spot-on insight can degrade to a tired cliché or shopworn truism. Still, Tocqueville was right: in the United States, sooner or later, almost every interesting or controversial question becomes a legal one. What’s more, a present-day Tocqueville might add, by way of friendly amendment to his predecessor’s original report, it seems that all of the really interesting or controversial problems are eventually packaged, often quite creatively, in freedom-of-speech terms. As a result, the First Amendment’s Free Speech Clause now occupies much of the field when it comes to our simmering (and sometimes boiling) public debates on matters of law, policy, and morality. Indeed, this “free-speech takeover” of public (and private) discourse was one of the more striking and significant developments during Chief Justice William Rehnquist’s long tenure on the Supreme Court....

Most likely because it is an election year, the argument in Crawford v. Marion County Board of Elections, has attracted spirited attention, and almost forty briefs from outside groups. Supporters of the law, which requires Indiana voters to present a government-issued photo ID before voting (or vote provisionally or swear indigency or other inability to obtain an ID) argue that an ID requirement is necessary to prevent voter fraud. Opponents argue that ID requirements attack a phantom problem, because there is little evidence of impersonation fraud. The problem with both perspectives is that they attempt to score public policy points in the context of constitutional adjudication. The question before the Court in Crawford is not whether Indiana’s voter ID requirement is good policy, canny politics, or even whether it is justified. The question is whether it is facially unconstitutional for a state to impose this specific ID requirement on all voters....

For decades California has been a leader in protecting the free speech rights of students in public high schools. Last year, a state court issued a decision expanding California law’s already broad protection of even the most offensive and politically incorrect student speech. In Smith v. Novato Unified School District, the California Court of Appeal decided that two politically charged student articles in a school paper that angered students and parents (one on immigration and the other on “reverse racism”) were not unprotected incitement, as school officials argued, but rather protected speech that could not be restrained or punished. In doing so, the court adopted a narrow interpretation of “incitement” under California law that confers on student speech perhaps the greatest protection of any state in the country—and much greater protection than the First Amendment provides....