Each year reporters all over the country, both student and professional, are forced into an ethical and legal quandary. They must decide whether they should comply with threats or a court order to reveal the identity of a source, to testify about something in their notes or, even, to provide information about an already published or broadcast story. Journalists who refuse could risk jail time or costly fines.
As the student media’s role in their schools and communities increases, they become more susceptible to the perils that commercial journalists face. Fortunately, journalists have some protection against compelled disclosure in the form of state or federal constitutional provisions, state shield laws or common law. These bundles of laws are referred to as the reporter’s privilege. This article will focus on the differences between reporter’s privilege laws as well as the ethical and legal concerns involved both in making promises of confidentiality and keeping them.
It is important to note that reporter’s privilege laws vary by state or federal jurisdiction. Some laws provide broad protection, shielding both published and unpublished information as well as confidential and non-confidential sources and materials from compelled disclosure. Others are much less protective. Also, as will be discussed, on rare occasions student journalists may be hard-pressed to take advantage of the legal protections available to the commercial media.
For an analysis of specific state reporter’s privilege laws and their specific application to student media see our State-by-State Guide to Reporter’s Privilege Law
Background
Consider the following: You are researching a story about a school employee who was demoted for reasons she believes were related to her religious faith. Several sources, who will only talk if you promise not to reveal their identity, confirm that the employee’s job duties were altered because some key administrators felt her beliefs made her an “improper role model.” After your story runs, the employee sues the school and seeks a court order, a subpoena, that would direct you to reveal the identity of your sources so that she can strengthen her legal claim.
Or, suppose you are a photographer for a student publication. One day you are sent out to cover a campus sit-in demonstration. Like most such demonstrations, it begins peacefully and you casually begin to snap pictures and take down identifying information. The police show up. Some of the students start shouting, threats are made and returned, a push leads to a shove and the situation turns ugly. Police officers and students are injured. Always the dedicated journalist, you snap pictures throughout the entire incident. You do such a good job, in fact, that shortly after the story and photos run in your newspaper a prosecutor orders you to bring to court all other unpublished photos, notes or evidence they might use in prosecuting those involved in the skirmish. You will also be required to testify as a witness.
The first question you might ask yourself, obviously, is what do you do? What are your legal rights as a student reporter in situations such those mentioned?
Reporters who often use confidential sources in their stories or information from confidential sources are probably familiar with the concept of a reporter’s privilege. A privilege in law is exactly what it sounds like, something that gives one person an advantage another does not have. Where applicable, a reporter’s privilege allows journalists to avoid testifying in judicial — and sometimes administrative — proceedings about something they wrote, information gathered from an interview or a source’s identity. This is considered a privilege because in most cases society has determined that citizens have a civic duty to comply with a court’s order in the interest of justice.
Why journalists defend reporter’s privilege
Student journalists who are not as familiar with using confidential sources may wonder why it is important to protect these sources after the story is published. Journalists stay true to their word for many reasons, both ethical and legal. Sources are crucial to the newsgathering process. Often they come forward with information reporters and the public would be unaware of without them. Keeping a promise to a source helps ensure that they will continue to trust you and your publication. This is important because sources not only talk to you but also to each other. News spreads and an untrustworthy reporter will find it hard to find future sources. Keeping promises of confidentiality also helps people to trust the profession of journalism. As you and your school media are often most students’ first exposure to the press, it is important that they learn to trust reporters. If your classmates’ earliest perception of the media is that reporters cannot be trusted it is unlikely their views will change later.
Many journalists believe that by revealing confidential information you have not only put your source in a position she was unwilling to put herself in voluntarily (for reasons of job security, personal relationships, etc.), you may also have breached your professional code of ethics as a journalist. (See “The Society of Professional Journalists, Code of Ethics,” Revised 19961). On the other hand, some reporters consider it their ethical duty as citizens to testify when called upon by the courts in certain circumstances especially when someone’s health or safety is at issue. These are considerations every journalist must weigh — hopefully before any promises are made to a source.
Another consideration when weighing the obligation to protect a source is legal liability. If a journalist does reveal a source or information received based on a promise of confidentiality, he or she may be sued by the source for divulging the information.2 A promise of confidentiality is, in essence, a contract between the source and the reporter. If it is broken the reporter might have to pay for any damage caused.
But it is not just when confidential sources or information are at issue that journalists feel compelled to maintain their independence. Many journalists are also concerned that by testifying in any context about their work product they will appear as an arm of the state. In other words, reporters do not want to seem like “private investigators” for law enforcement or, in the case of student journalists, for their school administration. Journalists, who generally strive to remain independent and balanced in their reporting, may also fear being perceived as an advocate for one party during a criminal or civil dispute if called to testify for or against a party or to turn over notes or photos. Journalists often have access to people or events to which police or other non-neutral parties would not be welcome. Such access gives the public a close-up look at news that would otherwise go unreported. If (or when) the press is viewed as merely an extension of government or other authorities — if they lose their status as independent, neutral observers — such access quickly ends and the public loses.
When making the decision whether to participate in a legal proceeding or reveal information, consider that every time a court or other governmental body is successful in compelling a journalist to supply information, be it scribbled notes taken at a pep rally or video tape of student demonstrators, a precedent is laid whereby the next step to forced disclosure will be that much easier.
First Amendment reporter’s privilege
The landmark Supreme Court case, Branzburg v. Hayes3 held that reporters have no First Amendment right not to testify in a grand jury proceeding. Branzburg, however did not end the fight for a reporter’s testimonial privilege. Several federal circuits have interpreted the court’s holding to be limited by Justice Louis Powell’s concurring opinion in the case. Powell, while concurring with four other members of the court that there is no absolute constitutional reporter’s privilege, described a three-part balancing test for determining when reporters might have a qualified privilege not to testify. Many believe Powell’s vote created a five-member majority for a qualified privilege. Under Powell’s test, reporters can only be forced to testify if the party issuing the subpoena can establish that the information sought is: (1) highly material and relevant to the underlying claim, (2) necessary and critical to the maintenance of the claim and (3) unavailable from alternative sources.4
The Branzburg decision also left room for the states to establish their own protections for reporters and for Congress to enact a federal shield statute. While Congress has failed to enact such a statute since the 1972 decision, 48 states and the District of Columbia have recognized some form of a reporter’s privilege.5 While state protections are invaluable, the lack of a federal statute or a federal standard breeds inconsistency. This is especially true for student journalists. For example, a student journalist in Montana has a greater chance of using the state’s shield law than a student in Delaware, where the shield law requires that reporters must show that their principal livelihood is earned as a journalist.
Where are the reporter’s privilege laws?
Absent a federal statute, student journalists must rely on: (1) a state shield law or (2) a reporter’s privilege recognized by the courts. A court-recognized privilege (CRP) is usually based on the First Amendment, the state constitution or common law. While reporter’s privilege laws grounded in constitutions or common law are in many cases as effective as state shield laws, shield laws are the most common. However, unlike CRP’s, which generally incorporate the Branzburg balancing test and typically offer protection based on the intent of the journalist to disseminate the information to the public, state shield laws often focus on professional affiliation in determining who is protected.6 This can be problematic for student journalists, especially those who are unpaid. For example, some state laws require that reporters either earn a living through their work as a journalist or work for a media organization that publishes or broadcasts at least once a week. These limitations on the privilege favor career journalists and the commercial news media organizations that tend to publish or broadcast on a more regular basis than many student publications.
Types of reporter’s privileges
Reporter’s privilege laws, while having a similar purpose, can vary significantly. In addition to tracing their source to either a state shield law or CRP (court-recognized privilege), reporter’s privilege laws can also vary according to where they come from, the nature of the protection they provide, who they cover and what they cover. Before relying on a reporter’s privilege law for protection, student journalists must be familiar with the strength and limitations of their particular law.
State or federal law
Most court orders to journalists arise from state cases.7 In such situations, the reporter’s choice of defense is usually clear: a state shield law (if available) and/or a state CRP. Where a subpoena is issued in a federal case, however, things can get a bit more complicated. In such cases, the federal court can apply a federal CRP (generally based on the First Amendment), the law of the state in which the federal court sits or sometimes — where the controversy crosses state lines — the law of another state.
The United States is divided into 12 federal circuits, each of which — like courts in each of the 50 states — can apply a different reporter’s privilege standard. For more information on federal CRP’s, see The Reporter’s Privilege compendium published by the Reporters Committee for Freedom of the Press and available on their Web site.8
Absolute privilege v. qualified privilege
Reporter’s privilege laws are generally classified as either absolute or qualified. An absolute privilege will always protect the reporter from disclosing any information protected by the privilege. These broad privileges are rare. A qualified privilege, on the other hand, can be outweighed by a competing interest presented in a given situation. Qualified privileges are much more common because states are concerned about the balance between the reporter’s First Amendment rights and those of the party requesting the reporter to testify. Qualified privileges create “a presumption that [a reporter] will not have to comply with a subpoena, but it can be overcome if the subpoenaing party can show that the information in [the reporter’s] possession is essential to the case, goes to the heart of the matter before the court and cannot be obtained from an alternative, non-journalist source.”9 Often a qualified privilege is overcome in criminal cases where the defendant’s Sixth Amendment right to a fair trial trumps the reporter’s First Amendment rights.
Sources v. information
State shield laws and CRP’s often treat information and sources differently. While information for a news story may come from a source, it may also be obtained through research or other newsgathering. Information, whether received from a confidential or non-confidential source or from some other type of newsgathering activity, is not always protected to the same degree as the source itself and may not be covered at all.
Confidential v. non-confidential sources
Depending on the state law, the reporter’s privilege can also protect two different types of sources: confidential and non-confidential. Most state laws cover at least confidential sources. These are the sources that will only talk to a reporter after the reporter promises not to reveal their identity. Because a journalist’s interest in protecting non-confidential sources is deemed to be of less importance, non-confidential sources generally receive less protection under reporter’s privilege laws than their confidential counterparts. While revealing the identity of a non-confidential source may not present all of the ethical and legal dilemmas discussed above (for instance, a non-confidential source cannot sue you for revealing his or her name) a journalist should still consider whether it is ethically appropriate to get involved in a legal proceeding.
Published v. unpublished information
Yet another distinction in shield laws is that of published vs. unpublished materials. Published materials often receive little protection because the courts anticipate fewer First Amendment implications when ordering a reporter to talk about information or turn over information already in the public eye. However, most subpoenas seek unpublished material. Examples of unpublished materials are reporter notes, outtakes, drafts, photo negatives and memos. These pieces of information are often protected under state laws for the same reasons that a confidential source would be protected. By keeping this information private, it encourages the free flow of information and the freedom of the press to gather and disseminate news.
What to do if you receive a subpoena
If the requesting party cannot persuade you to voluntarily provide the information she wants, she may go through legal channels and subpoena you. Subpoenas are court orders that command you to appear at a specified place and time to testify under oath, to provide certain documents or other materials or both. If you are served with a subpoena, you should immediately contact a media law attorney or call the Student Press Law Center. Whatever you do, do not ignore a subpoena. It is a legal order and you must appear as directed either to testify, hand over requested information or to ask the judge to “quash” or reject it. If you choose to fight a subpoena and you lose, you will again be faced with the decision of whether to comply with the order. Reporters who do not comply at this point can face fines, jail time and contempt of court charges. Some journalists, including students, have accepted these punishments rather than violate their ethical principals.
Student journalists, like their commercial counterparts, are subject to the laws of state and federal courts. While their job responsibilities might mirror those of reporters for commercial news organizations, they sometimes do not receive the same protections afforded them. Consequently, student journalists should be careful when offering promises of confidentiality to their sources. While most states have not had the opportunity to consider whether their reporter’s privilege law is applicable to student journalists, those that have considered it generally extend this privilege to the student media. Considering this, our state-by-state guide is the best analysis the Student Press Law Center can give you of how the courts in your state might rule if a student journalist is subpoenaed. You can find it on our Web site at: www.splc.org/reportersprivilege
Should student journalists make promises of confidentiality?
Promises of confidentiality should not be handed out lightly. If your newsroom permits the use of confidential sources there should be a policy in place to guide students faced with the decision of whether to offer this protection to a source. A clear policy can avoid problems. In most cases, such a promise should not be made without the approval of an editor.
Before making a promise of confidentiality, the Poynter Institute suggests reporters and editors ask themselves the following:
- Is the story of overwhelming public concern?
- Is there any other way to get the information on the record?
- Is the information from the confidential source verifiable?
- Are you willing to reveal to the public why the source cannot be named (without accidentally revealing the identity of the source) and what, if any, promises you made to get the information?
- How would your audience evaluate the same information if they knew the source’s identity?10
The use of a masked informant where the information can be obtained through more open channels or with a little — or a lot — of thorough and competent reporting is simply bad journalism. When a reporter uses an unnamed source he has decided to make a trade off. Because it is the business of the profession to reveal the truth, a reporter who pledges confidentiality has decided it is worth the price of concealing part of the truth — and risking some loss of credibility — in order to expose a greater or larger truth.
Can school officials force disclosure of information?
School administrators may pose a more common threat to student journalists trying to protect confidential sources and information than law enforcement. While no court has ever decided whether student journalists may rely upon a reporter’s privilege law to refuse to disclose a confidential source or information to school officials, a student reporter’s strongest argument against compelled disclosure to a principal or dean, for example, is that school administrators — unless they seek the information through formal legal channels — simply lack the authority to force students to reveal confidential information. Without a court-issued subpoena ordering disclosure, students can argue that they are under no obligation to respond to the demands of school officials. Additionally, they may be able to make a constitutional- or state law-based argument to protect their editorial independence. Private school students, because their administrators are not usually considered government actors, will have a hard time relying on their constitutional rights. However private school students can use the same arguments they use against censorship to protect themselves against forced disclosure: policy arguments in favor of the privilege and contract claims based on free-expression guarantees listed among students’ rights.
Advisers: Ignorance is bliss
Although both the reporters and the adviser may want to be involved in making the newsroom’s confidentiality policy, the adviser’s role should end there. An adviser should never be privy to the confidential information provided by the student reporter’s source nor should they know a confidential source’s identity. In the case of a story about unlawful activity on school grounds the adviser, a school employee, may be legally bound to report what he or she knows. The adviser could be faced with either revealing the source’s identity or other information and violating ethical and possibly legal obligations to the source or keeping the secret and being subject to possible sanctions or punishment from the school. Neither of these are attractive choices and both should be avoided at all costs to save the adviser, reporter and the news organization headaches, time, money and harm to reputation.
Endnotes
- Society of Professional Journalists, Code of Ethics, available at http://www.spj.org/ethics_code.asp.
- Cohen v. Cowles Media, 501 U.S. 663 (1991), on remand, 479 N.W.2d 387 (Minn. 1992), remanded and reh’g denied, 481 N.W.2d 840 (Minn. 1992).
- 408 U.S. 665 (1972).
- Id. at 710 (Powell, J., concurring).
- Only two states, Hawaii and Wyoming, have not yet recognized some kind of reporter’s privilege.
- Practicing Law Institute, Communications Law 2002, at 420 (2002).
- A survey by the Reporters Committee for Freedom of the Press found that at least 86 percent of the subpoenas issued to news media organizations in 1999 arose in state court proceedings. Agents of Discovery: A Report on the Incidence of Subpoenas Served on the News Media (1999).
- http://www.rcfp.org/privilege.
- Id.
- See Al Tompkins, Guidelines for Interviewing Confidential Sources: Who, When, and Why?, at www.poynter.org/content/content_print.asp?isp=4361.