Legislating the First Amendment: Statutory Shield Laws as Non-Judicial Precedents Public Deposited

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  • March 22, 2019
  • Smith, Dean Christian
    • Affiliation: Hussman School of Journalism and Media
  • Legal scholars have long sought to explain how the meaning of the U.S. Constitution changes over time. Increasingly, scholars have focused on the role of nonjudicial actors working outside the courts. Among scholars working under the banner of “popular constitutionalism,” Professor Michael Gerhardt at University of North Carolina Law School has propounded a theory of “non-judicial precedents” to describe how nonjudicial actors make judgments about constitutional meaning and implement those judgments through, for example, social norms, codes of ethics, legislature-made statutes, and agency-made regulations. Non-judicial precedents pre-exist judicial pronouncements on many issues, and regardless of whether they are absorbed into court-made law, they gain normative force by being widely accepted over time. This dissertation has sought to test Gerhardt’s theory by applying it to a specific question in First Amendment law: Should there be a testimonial privilege to shield journalists from having to reveal confidential sources? The U.S. Supreme Court addressed that issue once, in 1972’s Branzburg v. Hayes, but the debate runs the length of American history, and state legislatures began creating statutory shield laws as early as 1896. To bridge statutory and constitutional law, and to bridge pre-Branzburg and postiv Branzburg eras, this dissertation has woven a single narrative by transporting the entire issue into the realm of constitutional theory. In applying Gerhardt’s theory, this dissertation explored five distinct periods in journalist-privilege history, each of which advanced the issue to the benefit of journalists and, more important, helped drive debate over the meaning of the phrase “freedom of the press.” These episodes, stretching to 1894, show that, as a normative matter, the journalist-privilege issue was a First Amendment issue long before courts recognized it as such. Furthermore, when courts cite shield laws as evidence of public support for a privilege, they validate the constitutional role these statutes play. As Gerhardt’s theory would describe, shield laws acted as mechanisms for implementing deeply felt First Amendment values. As Gerhardt’s theory would predict, statutes such as shield laws can empower non-judicial actors to participate in the nation’s ever-evolving constitutional culture.
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  • In Copyright
  • Packer, Cathy Lee
  • Doctor of Philosophy
Degree granting institution
  • University of North Carolina at Chapel Hill
Graduation year
  • 2011

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