Journalists' Right to Protect Confidential Sources Explained

Introduction: Press Freedom and Confidential Sources

The freedom of the press has provided a powerful cloak of protection in the interest of getting the news out to the public. In recent years, however, some elements of that freedom have come under scrutiny as issues of justice and national security have come into play. Journalists who bring the news to the public often develop confidential sources who are willing to tip them off to events and developments that the public has a right to know. These sources may be high-placed political figures, law enforcement officers, or others who could not provide information to the media if their identity were attached to it. The journalist takes what the source provides, locates people who can go on the record about the issue, and then writes the story.

The question of revealing sources has always been controversial in the world of mass communication. In light of recent terrorist events, journalists caught fabricating stories, and other developments that have drawn the industry into the public eye, the debate has become more heated than ever. While there will always be occasional problems created by a journalist's refusal to reveal his or her sources, that right must be supported. Without it, the press will ultimately fail to expose wrongdoings that the public has the right to know about, thereby stripping the American public of much of the power it holds over its elected officials and others in positions of authority.

The issue first commands attention when one considers the cases of several journalists threatened with jail for refusing to disclose their sources. On the surface, one might believe they should simply comply—until the far-reaching consequences of that compliance become clear. If journalists cannot protect their sources, many of those sources will refuse to come forward in the future. As a result, matters the public has a right to know about—including political corruption and criminal activities—will no longer be brought to light, and misconduct will be permitted to continue and expand unchecked. The consequences would be disastrous for democratic accountability.

The stakes of this debate were illustrated vividly when the Supreme Court refused to hear the appeal of several journalists ordered to reveal their sources in a case that ultimately resulted in a multi-million-dollar settlement. That settlement involved a man who claimed his privacy had been violated when sources provided information to journalists and those journalists refused to name them. As one report noted, "The settlement erased civil contempt of court citations against reporters for refusing to disclose who leaked them information about an espionage investigation of Lee, who was fired from his job at Los Alamos National Laboratory in New Mexico" (Sherman, 2006).

Legal Landscape: Subpoenas and the First Amendment

In recent years, the United States has seen a marked increase in the number of journalists served with subpoenas demanding they reveal their confidential sources. Many of these demands arise after a journalist exposes political corruption by way of a leak from a confidential informant with firsthand knowledge of the problem but no ability to speak about it publicly. These sources provide information about espionage, payoffs, illegal activities, and other matters of public interest that are damaging to those involved in cover-ups.

The legal risk to journalists who resist is substantial. As one account put it, "For reporters who cling to the claim that the First Amendment shields them from subpoenas and protects the identity of their confidential sources, contempt orders, hefty fines, and a jail bed await" (Dreiling, 2004). The First Amendment has long been understood to protect press freedom, but courts have not consistently interpreted that protection as extending to a reporter's absolute right to conceal sources from a grand jury or other legal proceeding.

Branzburg v. Hayes and State Shield Laws

The landmark 1972 Supreme Court case Branzburg v. Hayes established that journalists do not have the right to refuse to respond to a grand jury subpoena. Since that ruling, journalists and their organizations have continued to refuse to reveal sources even when faced with jail terms for doing so (Dreiling, 2004). The decision was controversial, and its aftermath produced a significant legislative response at the state level.

Following the Branzburg decision, 49 states moved to provide shield laws for journalists who did not wish to reveal their sources. However, no federal shield law exists. This gap means that when a journalist uncovers a story about federal corruption and is ordered to reveal the source who tipped them off, they have no legal protection against punishment if they refuse. And if journalists do begin to name sources, future informants will be reluctant to alert the media when federal-level corruption occurs (Dreiling, 2004).

Major news organizations, including the New York Times, the Washington Post, Dow Jones and Company, Gannett Company, Bloomberg, and Fox News, have asked courts to formally recognize a reporter's privilege. Without such recognition, these organizations worry that subpoenas will be used to harass journalists and intimidate government workers who might otherwise serve as sources (Dreiling, 2004).