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Protection of News
Sources/Contempt Power
Jailing of reporter for refusing
to cooperate with the government to divulge confidential information is not common, but it
happens
Journalists typically keep
excellent records of information, some of which is never published or broadcast
The information is often
important or vital to others
Police need video to see who
started a riot
Libel plaintiffs need to know the
identity of sources to prove their case
Requests and searches for
information by the government and others can compromise a journalist’s neutrality
Journalist’s need to be able
to do their work without fear of outside forces gaining access to the information they
gather
News and news sources
In past 30 years requests to
journalists to reveal confidential information has become more common
1999-Dan Rather and CBS were
asked by the government to provide videotape of an interview with one of the men on trial
for murdering a black man by dragging him behind a pickup truck
Options for journalists served
with a subpoena
Cooperate and reveal the
information sought
Such cooperation can damage
reporter/source relationship
Threaten independence fostered by
most news media
Seek to have subpoena withdrawn
or attack it in court in hopes of having it quashed
Refused to cooperate and face a
fine and jail time
Arguments for requesting
information
The 6th Amendment to the U.S.
Constitution guarantees us the right to have witnesses and to compel them to testify in
our behalf
Supreme Court has said many times
it is a citizen’s duty to testify
Arguments against requesting
information
It harms the free flow of
information provided by mass media
Fragile reporter/source
relationship may be damaged
Reporter’s privilege
Reporter’s have a qualified
privilege that permits protection of confidential sources or the shielding of other
information they have gathered
Similar to privilege of
confidentiality that doctors, lawyers, and clergy have
Reporter’s privilege varies
from jurisdiction to jurisdiction
May be U.S. or state constitution
that provides the privilege
Some places it is common law
Reporter needs to know the law in
his/her state
Tips for promising
confidentiality
Don’t routinely do it
Avoid absolute promise of
confidentiality. Will divulge name if subpoenaed
Don’t rely on confidential
source; get corroboration from nonconfidential source
Will you be the only source of
information for the police, attorneys, etc.
Can you use the information
without disclosing it was obtained from a confidential source
Promissory Estoppel
An old Anglo-American rule that
prevents injustice when someone fails to keep a promise that someone else relied upon
(even though the promise does not hold up on its own as an enforceable contract)
To prevail in such a suit the
plaintiff must show
defendant made a clear and
definite promise
defendant intended to induce the
plaintiff’s reliance on the promise, and that plaintiff did rely on the promise to
his or her detriment
promise made by the defendant
must be enforced by the court to avoid an injustice to the plaintiff
Cohen v. Cowles Media Co. (1991)
1982-Cohen gave information to
two Minneapolis and St. Paul newspapers about M. Johnson, a Democratic candidate
Reporters promised not reveal
name of Cohen, but did soon advice from editors and ran story about Johnson’s
conviction (later vacated) on shoplifting and unlawful assembly
Lower court (1989) said in breach
of contract suit brought by Cohen, who lost his job, he wins and gave the PR man $200,000
in compensatory and $500,000 in punitive damages
MN Court of Appeals affirmed the
conviction, but threw out punitive damages (1989)
MN SC reversed the conviction
(1990) because doctrine of promissory estoppel could not be applied because it would
violate FA
US SC reversed MN SC and told
state court to reconsider whether PE applied.
MN SC awarded Cohen $200,000 in
damages (1992)
Constitutional Protection of News
Sources
Branzburg v. Hayes (1972)
Denied constitutional protection
for reporter-source relationship
Reporters must testify before
grand jury and reveal sources
Recent years, this has changed
Lower federal and state courts
recognize reporter’s privilege
Special Concerns in Journalism
Shield Laws
Statutory privileges designed to
protect reporters from having to reveal confidential sources
In some jurisdictions, privilege
is absolute; other places it is qualified protection
Special Concerns in Journalism
Justice Stewart Potter said
government must prove three things in order to force reporters to reveal sources
Probable cause that information
is "clearly relevant to a specific probable violation of law"
Information cannot be obtained by
other means
"Compelling and overriding
need" for the information
© B.L. Yates 2001
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