Amusing Fourth Amendment Case
Deep Throat and Reasonable Doubt

Deep Throat and the Reporter's Privilege

Benjamin Franklin remarked: "Three people can keep a secret ... if two of them are dead."  Yet Bob Woodward, Carl Bernstein, Benjamin Bradlee, and Mark Felt kept Deep Throat's identity secret for over thirty years.  Deep Throat's identity is revealed

Pending before the U.S. Supreme Court is a cert. petition (here) analyzing - and asking the Court to grant cert. and decide - whether there is a reporter's privilege under the First Amendment.  If not, the petition asks, is there a common law privilege?

Under FRE 501, "[T]he privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."  The Deep Throat secret is perhaps a good compelling reason for the Court to recognize a reporter's privilege.

It's likely that Mark Felt violated the law when he revealed confidential information to Woodward and Berstein.  Yet, as a society we're far better off because he did.

(Hat tip: Orin Kerr.)