A Journalist’s Privilege The Ethics of Using Confidential Sources

Reasons to Use Confidential Sources  Disclosing Identity would expose informer to harm.  Corruption in own organization (loss of livelihood)  High-level policy disagreements  Police and military retaliation  Allows for government officials to speak more candidly

Problems with Confidential Sources  Lack of Transparency  Transparency is honest and fair*  Denies important information to reader  Often used for personal or partisan attack  Used for speculative purposes  Invoked for trivial comment

Background Facts  49 states have “shield laws” offering some protection to reporters from turning over sources.  Federal protections for reporters shielding sources are weaker than in most states.  More than two dozen subpoenas have been issued in the past two-and-a-half years to obtain reporter’s notes.  Approximately 500 cases involving reporter’s privilege have been litigated in the last 30 years.

Example Cases  OJ Simpson Case  Novak – Plame  Wen Ho Lee  WJAR  New York Times – Islamic Charity  Lewinsky/Clinton scandal

Branzburg v Hayes Supreme Court decision (1972) in which justices ruled 5-4 that the First Amendment does not shield journalist from cooperating with grand jury subpoenas. A concurring opinion by Judge Powell, called for a case-by-case evaluation balancing all citizens’ obligation to give testimony with press freedom.

Branzburg v. Hayes Questions  Is it the obligation of all citizens to provide evidence they have of criminal wrongdoing?  Does this law undermine the 1 st amendment?

Novak – Plame Case Syndicated columnist, Robert Novak, printed the name of a Valerie Plame, a CIA agent. Exposing a secret agent may be a federal crime. Novak has not publicly stated the source of this information. There is a federal investigation regarding the source of this information.

Novak – Plame Case An appeals court has ordered Judith Miller of the New York Times and Matthew Cooper of Time to describe to a grand jury how they learned the identity of outed CIA agent Valerie Plame. If they refuse, they'll face 18 months in jail.

Novak – Plame Questions  Should Novak, Miller and Cooper disclose their source?  Did Novak allow an attacker to hide behind anonymity?  If a journalist is duped or lied to by a source, should they revoke promised anonymity?  Does anonymity allow manipulation of the press?

Guidelines for Using Confidential Sources  Overwhelming public concern  No other way to get the essential information  Source must have verifiable and first-hand knowledge of the story (information must be proven true).  Willing to reveal to the public why source cannot be named.

Should this confidential source by used?