• LAW: Confidentiality and reporter’s privilege

Most of the time, when reporters talk to people and ask them for information, those conversations are “on the record.” That is, what the source tells the reporter can be reported, and the reporter can use the name of the source to attribute the information.

Sometimes, however, things are not so open.

Let’s say, for instance, that a person works for a company that is doing something illegal. That person wants to expose the legality but does not want to lose his or her job. She might go to a reporter with the information and ask that the reporter keep her name out of the news article

The reporter agrees and promises the source confidentiality. They have made a confidentiality agreement. The reporter publishes the article about the illegality but does not name the source of the information. A prosecutor reads the article and decides to prosecute the people who are committing the illegal acts. The prosecutors asks the reporter for the name of the person who is the source of the information.

The reporter refuses, citing the confidentiality agreement.

A judge agrees with the prosecutor and orders the reporter to reveal the souce of the information, saying that if the reporter does not, the reporter will go to jail for contempt of course.

What should the reporter do – break his word to the source and violated confidentiality agreement or keep his word, refuse to reveal the source and risk going to jail?

When communication between people is outside the reach of the legal system, it is called privilege. Laws in the United States recognize some relationships as having an absolute privilege (they cannot be violated under any circumstances) or limited privilege (only certain types of information are privileged.) Some of those relationships include:

Husband-wife. No court can complete spouses to reveal what they say to each other.

Priest-confessor. People who are recognized as priests, clerics or ministers cannot reveal with people tell them in a religious, counseling and confessional setting.

Doctor-patient. What you tell your doctor, and what he or she may tell you remains between the two of you. Medical information in general is considered to be among the most privileged information there is.

Lawyer-client. A criminal can confess a crime to a lawyer, but the lawyer cannot tell anyone about that confession. Almost all communication between an attorney and a client is seen as privileged.

Many journalists believe that conversations between reporters and sources should be privileged. In fact, they go further by asserting that the newsgathering process should be free of intrusion by government officials. This means that notes and other materials that reporters have gathered, as well as their sources, should be beyond the reach of the legal system unless the journalists themselves choose to reveal them.

Journalists argue that some privilege is necessary for them to do their jobs effectively and that the First Amendment – with its assurance of freedom of the press – is the legal basis for this assertion. They believe that the intent of the writers of the Constitution was to protect the press from intrusion by the government. Allowing journalists to offer confidentiality agreements in situations such as the one described at the beginning of this section is one way of expanding the powers of the First Amendment. Journalists should be able to gather information without the fear of going to jail if they refuse to reveal their sources.

Most journalists who make this argument want a limited privilege, not an absolute privilege.

Arguments against giving journalists this kind of privilege come most often from lawyers and prosecutors. They say that sometimes rerporters have information that is necessary for prosecuting criminals or for assuring that the courts can guarantee a fair trial. A journalist might hold a key piece of information that could put away a dangerous criminal or exonerate a person accused of a crime.

Over many years of debate about this topic, more than 30 states have agreed with journalists’ arguments and have granted to journalists a limited privilege. Under certain circumstances, they can refuse to reveal the names of sources or certain other information if they feel their ability to gather news would be compromised. These laws – which are call shield laws – give journalists some protection if they are involved with cases in local or state courts.

The federal government, however, does not have a shield law for journalists. Consequently, in cases that go before federal courts, journalists do not have any legal privilege. In a number of cases, journalists have spent time in jail for contempt of court because they would not reveal the souce of their information.

Even though they have the law to back them up, prosecutors often shy away from demanding that journalists reveal their sources. Such demands draw a lot of publicity and may distract them from some of the more central parts of their cases. And, if the journalist refuses to reveal the information as they are likely to do, bringing them before a judge and convincing the judge that such information is necessary is a long and difficult process.

Interestingly, some journalists to do not believe that the state or government should offer a shield law to journalists. They argue the following points:

Governments should not be involved in “protecting” the newsgathering process. Sometimes governmental protection means that the government can have control of it.

Shield laws necessarily define who the journalist is; they say who has the privilege and who doesn’t. Journalists do not like the fact that the government says who can and can’t be a journalist.

The First Amendment offers the protection of free speech and free press to every citizen, not just the people who gather news as a profession or the organizations that deem themselves as the news media

The arguments about confidentiality and reporter’s privilege go on all the time, and they will probably never be completely resolved.

How do you feel about them?

 

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