In chapter 8 it was discussed that courts have generally held that journalists have the same degree of access to information as any other person. Although this may be true, that does not mean journalists or reporters don’t have some type of privilege over any other person.
Since journalists come across a lot of information throughout their careers, it’s not secret that some of that information will be sensitive and potentially useful to criminal investigations. With that said, reporters and journalists are more likely to get their hands on this type of information. However, being that the information is highly important, the source may ask not to be revealed, meaning the reporter should agree and grant source confidentiality.
The concept of reporters privilege is a little different than what you’d expect. Most would think that it simply means that journalist and reporters are more likely or more fitting to receive certain information. Although this may be true, the actual definition of reporter’s privilege refers to the concept that reporters can keep information such as source identity confidential, even if the information is sought through court order.
For example, if a judge orders a reporter to reveal a source or information not yet published, the journalist does not have to. The idea of keeping a source secret is a vital piece of a journalist’s career, as breaking that promise could result in a severely damaged reputation, meaning your job as a journalist could be over. For example, if you reveal confidential information, no one will want to tell you confidential information in the future.
However, a court can issue a subpoena, which is an order to appear in court to testify or produce evidence, even if the source is confidential. On the other hand, recipients may file a motion to quash the subpoena, which is simply a request to nullify or annul the subpoena.
This idea of reporter’s privilege developed from a landmark U.S. Supreme Court case known as Branzburg v. Hayes. In this case, Paul Branzburg, a reporter, had uncovered and written about illegal drug use and sales in the Louisville, Kentucky area. Branzburg promised his sources that he would not identify them.
Of course, because of the severity of his articles, the court issued a subpoena for Branzburg to appear in court and answer questions about his sources and information. However, Branzburg kept his promise and did not reveal his sources, as he claimed the First Amendment and its free press clause meant that he should not be required to reveal confidential information given the circumstances of their cases.
The Branzburg case definitely set the stage for several other laws regarding what a journalist must and must not reveal. State legislatures also passed shield laws, which are state laws that protect journalists from being found in concept of court for refusing to reveal sources. However, it is important to note that not all states have implemented shield laws. In fact, Idaho, Iowa, Massachusetts, Mississippi, Missouri, New Hampshire, South Dakota, Vermont, Virginia and Wyoming have no federal shield law.
Although shield laws were created to protect reporters, only specific kinds of information are protected, and this information varies from state to state. For example, when called to testify about events reporters witnessed, such as crimes, most federal shield laws to not protect them. Also, when journalists and/or news organizations are defendants, like in a libel case, protecting source identity is likely to be rejected.
We’ve talked about laws protecting journalists, but does anything exist to protect the sources if a journalist were to decide to break confidentiality? Well, the U.S. Supreme Court faced an issue like this when a news organization voluntarily decided to reveal the identity of a source after making a promise of confidentiality.
In Cohen v. Cowles Media Co., Dan Cohen had associated with the campaign of a Minnesota gubernatorial candidate. As election day neared, he contacted four reporters between Minneapolis and St. Paul and offered them information about a political opponent, informing them that she had been arrested for unlawful assembly and for petty theft more than 10 years earlier. Of course, Cohen made sure that it was known to the reporters that the information could only be used if he were not identified as the source.
Before publication, a debate ensued in both newsrooms on whether to their promises of confidentiality they made with Cohen. However, they believed that Cohen had engaged in “dirty tricks” politics, which lead them to conclude that identifying him was essential so readers could completely evaluate the stories. With that said, the articles were then published with Cohen clearly identified as the source.
As a result, Cohen was fired from his job. Angry, Cohen sued the newspapers, claiming that they breached a contractual agreement of confidentiality. The trial court agreed, awarding Cohen $200,000 in compensatory damages as well as $500,000 in punitive damages.
However, after an appeal, the case eventually grew and made it’s way to the U.S. Supreme Court, where the concept of promissory estoppel arose, which is a legal doctrine requiring liability when a clear and unambiguous promise is made and is relied on and injury results from breaking the promise.
Ultimately, to be a successful journalist, you must understand the importance of source confidentiality and the potential consequences if you were to break that confidentiality. Furthermore, you also need to understand your right as a reporter to deny the court the source of your information. If a subpoena is issued, remember that you have the option to try to quash it.