A Journalist’s Confidentiality of Sources

My studies in journalism have taught me a myriad of things I didn’t know in regards to reporting for the media. I remember watching an episode of the Newsroom, a wonderful show on HBO about a news organization akin to CNN or Fox News, and the inner workings of that type of work environment. In a few of the episodes, the ideas of sources and maintaining their confidentiality came into play. My journalism classes discussed the same aspects in tandem with the art of journalism. My brain started turning a mile a minute at the prospects of maintaining a source’s confidentiality and what that meant in our current journalistic climate.

Few court cases exist throughout American history that have as much controversy and varying degrees of opinion as Branzburg v. Hayes. That particular case set a nation-wide precedence by ruling against a journalist that refused to name his sources. An article written by Paul Branzburg regarding the use of drugs in Kentucky, including the notes and research necessary to write the article, eventually found its way into the hands of law enforcement. Subsequently, the courts and the police brought Paul onto the stand where he refused to give up the names of his sources, thus leading to him being found in contempt of court. After attempting an appeal, which failed, Paul Branzburg then filed a writ of certiorari. A slew of following court cases, arguments, and rhetoric filled the judicial world after that fateful decision. Different laws have been passed, and the protection of sources and their confidentiality plays a heavy role in modern journalism.

Branzburg v. Hayes is historically important for a vast majority of reasons. First, modern journalism and the use of sources was greatly affected. Second, the ideas and rhetoric of different laws revolving around the same idea became prevalent in the judicial world. Third, journalism and the way sources were gathered and reported changed drastically. Finally, the First Amendment was scrutinized more than ever before in regards to journalists and rights they may or may not have.

Paul Branzburg lost the case by a close count of five to four. The Supreme Court ruled that reporter’s privilege, or the right to keep sources confidential without having to reveal them in court, was provided or protected by the First Amendment. Overall, it was decided that the journalist’s freedom of press was an essential tool that should be respected but not for the sake of a broken law. In other words, the public’s interest in a decision of justice vastly outweighs the confidentiality of a journalist’s sources.

It was decided that journalists, regardless of their position, lack the confidential access of an average citizen. Basically, if an average American citizen cannot claim any kind of private privilege in regards to the observation of a crime, then journalists and their sources cannot do so either. Sources are held to the same accountability and liability as a random citizen that witnesses a crime. Certain circumstances do exist that provides an exception to that idea.

A journalist can claim privilege if the government pursues the exposure of sources for the sole purpose of simply exposing the source. Unless it can be proven that a testimony is essential to the case, the privilege can hold value. Proof must also exist that states the court is issuing a subpoena in relation to the actual case rather than for its own agenda. As long as those criteria are met, the journalist’s privilege will not be upheld.

The lower courts have taken an almost interpretive approach to the Supreme Court’s ruling, as they often skate around the decision. Those aforementioned circumstances that give cause for exception are often exercised heavily by the lower courts. An example of this is when a court in Washington D.C. decided to extinguish subpoenas for different journalists regarding the Watergate scandal. The decision was made that granted them privilege in spite of the decision from the Supreme Court in Branzburg v. Hayes.

Different circumstances require different approaches in the lower courts. For instance, if the courts want to summon a journalist for a civil case, they are required to ask and answer three questions. First, the courts must ask if the subpoena is being issued because the journalist has information of high relevance to the case. Second, if it is determined that there is high relevance, the court must then decide if the information from the journalist will have heavy effect on the final outcome of the case. Lastly, the court must prove that no other intake for the information exists.

On the other hand, criminal cases are vastly different when determining if a reporter is granted privilege. The Sixth Amendment plays a large role in this circumstance. The Sixth Amendment grants a defendant the right to induce witnesses in his or her favor, ergo, a journalist’s source might be that compulsory witness. The same can be said for grand jury proceedings because of the Sixth Amendment. Given that the Supreme Court already ruled that the privilege does not exist, grand juries and courts usually agree.

Promising a source confidentiality can be a frivolous and dangerous act. It is highly recommended to confer with somebody from the agency from which the journalist reports, preferably an editor or somebody in the legal department. Vaguely guaranteeing confidentiality is not only poor judgment on the journalist’s side but has negative legal implications. A best practice would consist of letting the source know that the revelation of his or her identity might become prevalent. The journalist should make sure that the source is the only possible form of information present. In that case, it is best to plan ahead by gauging whether the information and the source might be scrutinized by the judicial system or if law enforcement is heavily recommended.

Confidentiality and complete suppression of a source’s identity is never absolute. Should a source demand confidentiality, which makes the interview or information reveal unofficial, a journalist can take several steps assuming the source has not already divulged the information. The journalist can first make sure another person, preferably one higher up, is present. After that, find a way, whether it be written or recorded visually or audibly, to have concrete evidence the promise was made. It is also suggested to fully investigate the source and information to the fullest extent. This allows for a better mutual agreement and respect between journalist and source. With great care, an understanding that nothing is absolute, and a myriad of research, there is no reason a journalist should ever feel like he or she is in a place of trouble while reporting on a controversial matter.

Some protections exist that helps facilitate a journalist’s ability to perform his or her job to the highest quality. Shield laws provide protections for journalists that are asked to divulge private information or sources in court. Even though this goes directly against the Supreme Court’s precedence, the extended protection only allows for a limited amount at the state level. Fortunately, a majority of the states follow this suit of action in that 49 of the 50 states currently have some form of shield laws in place to help protect journalists and their sources.

The shield laws in place cover a wide range of protections. Some states provide a basic protection that will allow minute confidentiality of the source, regardless of whether confidentiality was promised. Others ensure that divulged information that was not included in the published work is also protected. Unfortunately, many of the states do not provide every kind of possible protection and exclude all forms of public broadcast, especially electronic media such as blogs, social media posts, and online magazines and newspapers. Protection is also not provided to any information that was obtained illegally, nor does it guarantee any form of confidentiality to the source if the source is a part of the reported criminal activity in any way.

In our current status quo, the online world is affected more by privilege, or its lack thereof, due to the realm of freelancers, online authors, bloggers, and social media. Shield laws can only extend so far, and this is why Congress continually attempts to suppress forms of shield law by saying those that do not make a majority of their income from reporting and gathering information should not be covered by any kind of privilege. The idea falls full circle because journalists and writers do not have more power than average citizens in the eyes of the Federal government. In a time where the entire world can access information at the press of a button, the freedoms and rights permitted a journalist are fraught with limitless scrutiny.

Branzburg v. Hayes shaped the very fabric of journalism and the retrieval of information. It is rare to see a single case begin a domino effect that essentially institutes interpretations from every possible angle in all fifty states. The Supreme Court began a waterfall of judicial proceedings, state laws, and changed the way journalists receive and portray their information. Journalists are now forced to walk threaded, tight lines of care when talking to a source and retrieving information. Shield laws do exist that can help protect journalists at a state level, but those laws are never absolute, nor do they guarantee absolute protection. The future holds many possibilities for further analysis of Branzburg v. Hayes and how it shaped modern journalism, but with proper understanding of the ethical, lawful, and moral approach to gathering information, everything should fall into place.