Now, be honest. Can you really see Andrea Mitchell going to jail to protect Karl Rove over outing Valerie Plame?

First Amendment protection. The U.S. Supreme Court last considered a constitutionally based reporter’s privilege in 1972 in Branzburg v. Hayes, 408 U.S. 665 (1972).

Justice Byron White, joined by three other justices, wrote the opinion for the Court, holding that the First Amendment does not protect a journalist who has actually witnessed criminal activity from revealing his or her information to a grand jury. However a concurring opinion by Justice Lewis Powell and a dissenting opinion by Justice Potter Stewart recognized a qualified privilege for reporters. The privilege as described by Stewart weighs the First Amendment rights of reporters against the subpoenaing party’s need for disclosure.

When balancing these interests, courts should consider whether the information is relevant and material to the party’s case, whether there is a compelling and overriding interest in obtaining the information, and whether the information could be obtained from any source other than the media. In some cases, courts require that a journalist show that he or she promised a source confidentiality.

Two other justices joined Justice Stewart’s dissent. These four justices together with Justice William O. Douglas, who also dissented from the Court’s opinion and said that the First Amendment provided journalists with almost complete immunity from being compelled to testify before grand juries, gave the qualified privilege issue a majority. Although the high court has not revisited the issue, almost all the federal circuits and many state courts have acknowledged at least some form of a qualified constitutional privilege.

Here are the District of Columbia shield law particulars.