An informed public is a part of the foundation of a functioning democracy. Confidentiality plays a significant role in helping the press inform the public of government conduct. Confidential sources have led to the publication of seminal news stories, significantly impacting the public’s participation in our democracy.
For example, journalists have relied on confidential sources to report on the Pentagon Papers, abuse of detainees at Abu Ghraib prison in Iraq, domestic surveillance by the NSA and the CIA’s network of secret prisons. These stories revealing government misconduct would not have reached the public without confidential sources.
In chapter six of Journalism After Snowden, authors David A. Schulz and Valerie Belair-Gagnon discuss reporters’ rights to protect the confidentiality of sources. “A journalist must be able to make a credible promise of confidentiality that will be respected by the courts in most circumstances. Otherwise, a great deal of information needed for effective public oversight will never be disclosed.” (Bell, 97)
Are confidential sources protected under the law?
Like many areas of the law, it’s complicated. Many states have protected this privilege in some form as a matter of state law. That said, there is no statutory federal shield law establishing reporters’ privilege.
In the Supreme Court case of Branzburg v. Hayes in 1972, the court held that reporters have no First Amendment right to refuse to testify when summoned to appear before a grand jury. Justice Powell concurred, suggesting that an “evidentiary privilege might protect reporters from being compelled to disclose information in certain circumstances.” (Bell, 101) This led to the acceptance of a reporters’ privilege in many federal courts.
For years the reporters’ privilege to protect confidential sources was considered well established by the courts. This changed after the attacks of September 11. After September 11, there were areas in which society willingly or unwillingly gave up freedoms, in order to increase national security protections. One of these areas was the reporters’ privilege.
The Justice Department went after reporters’ sources in cases involving national security leaks. They also reinterpreted rules, allowing them to subpoena reporters and seize phone call and email records.
In this chapter, Schulz and Belair-Gagnon discuss a strategy to protect the reporters’ privilege. They suggest changing the vocabulary used around the subject, putting an emphasis on the privilege of an anonymous source. This takes away the idea that the press gets “special treatment” in the court system. It shifts the importance to the “needs of citizens for information that can come only from sources willing to speak on an anonymous basis.” (Bell, 110)
Throughout history whistle blowers have revealed government misconduct, and with the help and protection of the press, have been able to inform the public of crucial information. The reporters’ privilege is equally about protecting anonymous sources, and the public’s right to information. Reporters cannot play their role as watchdogs of democracy without the use of confidential sources.