A Very Tentative Proposal to Amend Federal Rule of Evidence 501

By Mike Dorf

My latest Verdict column discusses the recent 4th Circuit ruling in United States v. Sterling.  In that case, the appeals court ruled that NY Times reporter James Risen could not invoke any privilege under either the First Amendment or federal common law as a basis for shielding a source who is being prosecuted under the federal Espionage Act.  I argue in the column that the First Amendment holding is reasonable, in light of the Supreme Court's seemingly categorical ruling in Branzburg v. Hayes.  However, I also argue that the court was too quick to reject a common law privilege because much of the argument against judicial recognition of a common law privilege turns on considerations of institutional competence.  Legislatures, it is said, are better positioned to make the complicated judgments about the circumstances in which the privilege should apply and when it can be overrridden.  However, I note that a court-recognized common law privilege--precisely because it would be a matter of common law rather than constitutional law--would merely be a default rule. If Congress were truly unhappy with whatever common-law privilege the courts fashioned, it could revise or eliminate the privilege.

I also argue in the column that the current situation--in which nearly every state has some reporter-source privilege but the federal courts do not--undermines federalism.  Where state law grants a privilege, it does so that reporters can give potential sources assurances that their identities will be kept confidential except in the limited circumstances where compelled disclosure is authorized by state law.  But a reporter often will be unable to predict that only state litigation, rather than federal litigation, will arise.  And so the lesser protection under federal law has the affect of weakening state protection.

It might be objected that the foregoing argument proves too much.  After all, whenever federal privilege law protects less than state privilege law, the less protective federal law undermines the state privilege.  Does anything distinguish the reporter-source privilege from the spousal communications privilege, the clergy-penitent privilege or the attorney-client privilege?  I think that the general answer is no--but that leads me to think that Federal Rule of Evidence 501 itself is the culprit.

Rule 501 instructs federal courts to maintain and develop a federal body of common law privileges, except that in civil cases in which state law supplies the rule of decision, state privilege applies.  That latter exception seems to me too narrow.  Most privileges serve values unrelated to a trial's search for truth: journalistic values in the case of the reporter-source privilege; family values in the case of the spousal communications privilege; etc.  Those values are not connected to the source of law that happens to bring a party or witness to a court.  E.g., the state wants spouses to feel free to talk openly, and that concern is not in any way connected to the question of whether one of them ends up being sued for medical malpractice (as to which the state privilege will apply) or sued for copyright infringement (as to which the federal privilege will apply).

To be sure, the source of law is relevant in one way.  Congress or the federal courts might make a judgment to place greater value on getting at the truth via all available evidence than any particular state does.  That greater value on truth (relative to whatever value a particular privilege serves) would be in play in just those cases in which federal law supplies the rule of decision.

I think the foregoing is a fair rationalization of the structure of Rule 501, but I wonder whether we might not be better off with a different regime in which federal courts follow state privilege law, absent some very compelling reason to formulate a federal privilege rule.  Such a regime would have the advantage of not undermining state privilege law, although it would introduce some new difficulties, such as choice of law questions in federal cases in which the law of more than one state can plausibly be thought to govern the privilege question and those states have different privileges.

Here, as elsewhere, we trade off one sort of uniformity for another.  But to my mind the current regime makes the wrong tradeoff.  A better model might be the admittedly complicated Erie doctrine. To oversimplify enormously (and to some extent to misstate the law), on matters of substance, federal courts follow state law, while on matters of procedure, they develop and follow their own law.  Privileges are chiefly a means of regulating primary conduct, and therefore it makes sense to me--at least presumptively--to have federal courts simply follow state law.