News source protection

SIGNIFICANCE: Journalists and the courts are engaged in an ongoing struggle over permissible uses of the information that journalists gather from confidential sources. The news media seek protection of their sources under the principle of freedom of the press guaranteed by the First Amendment, but court rulings and state shield laws do not always protect them from having to violate their pledges of confidentiality to their sources.

In September, 2004, eighteen newsgroups, including the Associated Press, banned together to seek greater protection for journalists from having to reveal their confidential news sources in court. The issue is an old one but one that in 2004 had been highlighted by attention given to reporters ordered to testify before a grand jury about the identity of a covert Central Intelligence Agency officer through confidential sources. The news organizations insist that this protection is essential if the media are to continue to meet their mission of providing the fullest possible information to a free society.

Political insiders often leak information to the media that reveals matters such as government corruption and other problems. From Washington, D.C., to the local police stations, leaking information to the new media in return for promises of confidentiality has long been considered a routine way of getting vital information to the public. After the September 11, 2001, terrorist attacks on New York and Washington, D.C., President George W. Bush and his administration attempted to crack down on this practice by arguing that national security and safety were at risk.

Protection of news sources is not limited to government information leaks or corporate whistle-blowers. It may also involve shielding the identities of juvenile offenders, victims of sex crimes and child abuse, and criminal suspects before formal charges are filed. Balancing the public’s right to know with fair and ethical reporting is a continuous legal challenge in the journalism profession.

The First Amendment

Journalists claim protection under the First Amendment of the U.S. Constitution, which supports the free flow of information and an independent press. This special allowance is based on the idea that journalists are not acting as ordinary citizens but as watchdogs for the community. Nevertheless, their right to protect their sources has been repeatedly challenged. In 1972, the U.S. Supreme Court examined the question of forced disclosure of confidential sources based on four separate cases, later known as Branzburg v. Hayes. In that ruling, the Court established that journalists did not have a constitutional right to avoid subpoenas. In 1998, the U.S. Court of Appeals for the Fifth Circuit found that the Branzburg ruling created First Amendment protection for journalists when subpoenas were intended to harass them. Because judicial interpretations are inconsistent, laws in lower courts have been established to protect the media and information sources.

State Shield Laws

By 2023 forty-one U.S. states and the District of Columbia had adopted shield laws as a First Amendment safeguard. Although the protection these laws provided varies among the states, lower courts considering challenges to journalists generally consider whether the cases are public or private, whether the protected information is likely to bear directly on the cases at hand, and whether the information can be obtained through other means. The various states differ on such matters as protecting sources versus protecting the information itself and the professional status of the journalists who are protecting their sources. However, because the protections that the shield laws provide tend to be minimal, many journalists are still subpoenaed to court.

Although the subpoena process, guaranteed by the Sixth Amendment of the Constitution, protects the right of defendants to obtain witnesses and information needed for fair trials, journalists argue that the free flow of information in a free society is compromised when they are required to identify their sources and turn over to courts their notes, photographs, videotapes, and taped recordings of interviews. Sources often confide in journalists in confidence, in return for promises that their identities will be protected. Without such promises, the information sources—particularly political and legal sources—may end. Moreover, newspapers, broadcasting media, and other news outlets may also be less willing to invest resources into investigative reporting if the possibility exists that their salaried journalists may spend time testifying in court and possibly even serving time in jail, instead of fulfilling their job duties.

Members of the news media often ignore subpoenas and face the risk of being charged with contempt of court and being penalized by fines, jail sentences, or both. There are two basic kinds of contempt citations: criminal and civil. Criminal citations, which often result from disruptive behavior during court proceedings, may carry fines and prison time. Civil citations, which are generally issued to persons who refuse to supply information that is deemed important to trials, are punishable by daily fines and incarceration until the offending journalists comply with the courts’ requests.

When subpoenas fail to produce compliance, the courts may issue police search warrants to obtain information from the journalist. In an attempt to protect the media from the searches in 1980, the U.S. Congress passed the Privacy Protection Act , which requires law enforcement to use subpoenas before resorting to searches and seizures. Exceptions include situations when the information sought is connected with pursuits of criminal suspects, when it may prevent death or injury, or when there is a danger that it may be hidden or destroyed.

Ethics Versus Legal Protection of Sources

Journalists often offer protection to their sources, promising anonymity to those who give them vital information. Most journalists believe that breaking such promises violates their ethical standards. However, the nature of the anonymity they offer to sources can be misleading, particularly as they must often reveal their sources to their editors before their stories are published. When journalists break their promises, they may be sued for breach of promise. Sources have been known to seek legal damages against journalists and their employers, who are also protected by the First Amendment. Media lawyers generally recommend that news organizations adopt specific guidelines for using anonymous sources and that clear limitations be set on the promises of confidentiality that their employees make.

Bibliography

Associated Press Stylebook, 57th ed. Basic Books, 2024.

Brooks, Brian S., George Kennedy, Daryl R. Moen, and Don Ranly. News Reporting and Writing. 13th ed. Boston: Bedford/St. Martin's, 2019.

Calvert, Clay, Dan V. Kozlowski, and Derigan Silver. Mass Media Law. 22nd ed. New York: McGraw-Hill, 2023.

Day, Lois A. Ethics in Media Communication: Cases and Controversies. 5th ed. Belmont, Calif.: Thomson/Wadsworth, 2005.

Knowlton, Steven R. Moral Reasoning for Journalists: Cases and Commentary. Westport, Conn.: Praeger Publishers, 1997.

Magill, Jim. "Congress May Soon Pass Federal Shield Law. It’s Been a Long Time Coming." Quill, 24 Mar. 2024, www.quillmag.com/2024/03/14/congress-may-soon-pass-federal-shield-law-its-been-a-long-time-coming/. Accessed 8 July 2024.