Confidentiality of Sources Whether or

Confidentiality of Sources Whether or not journalists have the right to hold sources confidential is a tricky question with no definitive answers. What the law makes clear is that journalists do not have a constitutionally protected right to keep their sources confidential. In fact, Supreme Court decisions make it clear that the First Amendment protects the press' right to publish information, but not necessarily the press' right to gather that information. As a result, it is clear that there is no constitutionally mandated protection for confidential sources.

As a matter of public policy, this lack of protection for confidential sources may be a hazard, because sources may be less willing to talk to the press when they know they can be identified. On the other hand, there are compelling arguments for requiring members of the press to face the same type of scrutiny as other members of the public. For these reasons, lower court have actually fashioned their own version of journalistic privilege, despite the Supreme Court's unwillingness to do so.

This privilege is qualified; it does give journalists absolute protection. However, courts are generally unwilling to force journalists to give up confidential information unless the journalists have relevant information, there is a compelling need for disclosure, and there are no alternative sources for the information (Pember-Calvert, p.389). While many lower courts do recognize a common-law right of privilege, it is important for journalists to keep in mind that this is greater protection than the Supreme Court has ever been willing to extend to journalists. In Branzburg v.

Hayes, the Court held that a journalist does not have a constitutionally protected right to withhold confidential sources. The Court did suggest that the First Amendment offered some protection to journalists for the purposes of news gathering. However, it failed to elaborate what form that protection might take, and how journalists could access that protection. Moreover, the Court has repeatedly declined to extend that statement to offer journalists any meaningful protection.

For example, when asked to order that journalists have full access to prisons or other government-run facilities, the Court has repeatedly declined to do so. While the Supreme Court has refused to offer journalists any type of formal privilege, the lower courts have responded differently. After all, the Branzburg decision opened the door to the idea that journalists might be entitled to some type of constitutional protection for their investigative activities.

As a result, the lower courts have been willing to protect the press' right to gather information, especially in civil cases, though the courts have been far from endorsing any activities under the guise of journalistic freedom. Moreover, when journalists have been accused of criminal activity, arguments that they have only engaged in that activity to pursue stories have been unsuccessful. The courts have made it clear that being a journalist does not, in any way, free someone from liability under the criminal law.

Specifically, the courts have held that reporters can be civilly and criminally liable for trespass, whether on private property or government-owned property. However, the courts have not held journalists liable for "trespass" into private property that is open to the public, even when the journalists have concealed their real identity and their cameras. Government officials and agents, such as police officers and firefighters, cannot give journalists the right to enter private property.

Journalists may be liable for fraud for information that they obtain via subterfuge, though the courts have not found reached a consensus on that issue. In addition, the courts have made it clear that members of the Fourth Estate have no more reason to disobey the law or government officials than any other citizens. For example, reporters who fail to obey lawful orders from police and/or government officials can face criminal liability for disorderly conduct.

However, reporters who obey orders that they believe are unlawful have been allowed to recover for civil rights violations, just like any other citizen. The problem is that the fact that journalists may be more likely to be involved in situations where police or other government officials are behaving inappropriately than the average citizen would be. Journalists can also be prosecuted for trying to induce grand jury members to talk about grand jury proceedings. However, this liability does not continue after the reason for the secrecy has evaporated.

One of the biggest issues facing modern journalists is whether or not they can claim privilege and protect confidential sources. The public seems to believe that journalists have the right to protect their sources, and this misconception is reinforced in movies and books. However, the reality is that journalists have only a limited privilege, and that such privilege almost always yields to public interest. As a result, journalists should strive to avoid promising confidentiality to any source.

Doing so places the journalist in the uncomfortable position of protecting a source or facing personal civil and criminal penalties. As a result, it is clear that reporters should not routinely promise confidentiality in standard interviews. Moreover, reporters should avoid giving absolute promises of confidentiality. Instead, they should have their sources agree that they may reveal names if subpoenaed. Reporters should not rely exclusively on sources, but get outside verification where possible, especially non-confidential sources and documents.

Reporters need to consider whether the information that they are going to publish is something that would be of interest to police or others, and if someone is likely to come after them for the identity of their sources. Finally, if a reporter decides to promise confidentiality to a source, he needs to first consult his editor, because the newspaper will be put in the position of defending the reporter from any resulting legal action (Pember-Calvert, p. 371).

In some cases, journalists are going to be required to guarantee confidentiality in order to get a source to agree to a story. This makes sense, because sources often face extreme potential liability for revealing information to the press. When told that confidentiality is a requirement of cooperation, journalists should first advice sources that there is not absolute protection for sources.

Even if a journalist is willing to go to jail to protect the confidentiality of sources, it is possible for the police to get search warrants that might allow them to discover information that would lead them to the source. However, unless a source seeks anonymity, it is fair for a reporter to assume that the interview is on the record. Moreover, there is no obligation to provide anonymity for information that a source has already provided.

Before making any promises to a source, a journalist needs to discuss the promise with an editor or news director. Journalists should also investigate the source and/or the information sought before making any promises of anonymity. Any promises of confidentiality need to be recorded, they also need to be easy to understand and to fulfill. Finally, journalists who have promised sources that they will have story approval need to refrain from adding anything to stories after that approval (Pember-Calvert, p.374).

These last details are crucial; journalists can be liable for failing to maintain confidentiality if they promise it to a source. As a result, journalists should be very wary of ever promising confidentiality, and should be certain that any confidentiality agreements are recorded and are in clear terms, should they ever have to defend themselves against such a claim. While there is no real constitutionally-established right to privilege and the common-law right to privilege is de minimus; that does not mean that journalists are without any protection.

Many states have established shield laws, which give journalists a statutory privilege to keep their sources confidential. However, there are no uniform shield laws. These laws vary from state to state and can even vary from court to court.