Confidentialityof Sources Paper
Branzbughvs. Hayes case
Thiscase involved several individual cases where the reporters weresummoned to testify before grand juries and reveal the identity ofsome confidential documents. All of theses summoned reporters refusedto appear and therefore the Supreme Court needed to answer thequestion whether requiring the reporters to appear and testify beforethe state or federal grand juries abridges the freedom of speech andpress that is guaranteed by the First Amendment. The case that facedBranzbugh was that of writing a story concerning the manufacture ofHashish. He appeared before the court but refused to answer thequestion about the individuals who had supplied him with theinformation for his story. In the ruling of the Supreme Court, thecourt ruled against a special First Amendment privilege that wouldallow the press to refuse to answer grand jury questions concerningnews sources. He was protected by an order issued that protected himfrom revealing confidential associations and sources of information,but he had to answer any questions that regarded to any criminal actthat he observed. There was therefore no privilege under the FirstAmendment for the journalists to refuse to reveal the names ofconfidential sources or other information when they were called totestify before a grand jury (Pember & Calvert, 2011).
Thefederal courts have limited the ruling of this case to be appliedonly on grand jury settings. Under either the First Amendment or thecommon law principles these courts have created qualified protectionfor journalists not to testify in other non-grand jury settings. Theview of lower federal courts is that the Supreme Court ruling onBranzbugh was very narrow. This ruling focused on the responsibilityof a reporter to testify before a grand jury. The lower court appliedthis ruling, giving the reporters a qualified right to refusetestimonies in other kind of circumstances. Ten out of the twelveappeal courts in the U.S have come up with the ruling that the FirstAmendment provides at least limited protection for reporters who areasked to testify or produce photos or other materials at hearingsother than the grand jury hearings (Pember & Calvert, 2011).
Dueto the difference in the rulings of different court on the rights ofthe journalists to hold information they deemed confidential and norelease it, a statutory protection called the shield law was enactedby 37 states by November 2009 that offered reporters some protectionagainst being forced to reveal the identity of confidential sources.The constitutional privilege granted by these courts has someelasticity depending on the kind of proceedings involved. For civilsuits, the privilege is more readily granted than for a testimonybefore a grand jury. In the civil lawsuit, whether a reporter will beforced to testify depends on the plaintiffs ability to show that theinformation they are asking is of certain relevance to the case, ifthe information is critical to the outcome of the case, and whetherthe person seeking the information can reveal to the court that thereis no other source for this information. A reporter who refuses toobey a court order to give critical information to a plaintiff in alibel suit faces a contempt of court charge and a potential fine orjail sentence. In criminal cases the privilege of the reporter mustbe balanced against the sixth amendment right of the defendant tocompel a testimony on their behalf. On grand jury hearings, thecourts have refused to extend the first amendment privilege (Pember &Calvert, 2011).
Thepromising of confidentiality by reporters to their source sis aprocess that should not be taken lightly. This is because there aremany people who seek to get the confidential information, or even thesource of the information. Refusal by the reporter to provide thesource of their information or the whole information to the plaintiffcould lead to the reporter being held in thee contempt of the courtbe jailed or forced to pay huge fines. On the other hand, when thereporter agrees to release the source of the confidentialinformation, they may escape the law but their relationship with thesource of the information is destroyed. These reporters can then besued by the source for breaking the confidentiality promise and canbe forced to pay monetary fines for destroying the name of thesource. Thus the process of promising confidentiality is a verytricky one. Therefore, it is very important to understand theapproach that journalists should take pertaining to promising theirsources confidentiality. One thing that journalists ought not to dois to routinely promise confidentiality as a standard interviewtechnique. This is because it is difficult to predict if there willbe plaintiffs to get the source of the information or the wholeinformation. Thus, routinely promised confidentiality could lead thereporter to court cases due to breach of the confidentiality laws ordue to subpoenas. Instead of giving absolute promise toconfidentiality, the reporter needs to try to persuade the source toagree that the reporter may reveal the name if subpoenaed. This willassist the reporter to report incase the information they releasewill lead to a court battle where the source is required. Thereporter will be able to hand in the name without compromising thepromise to the source and without being in contempt of the court(Pember & Calvert, 2011).
Again,reporter needs not to only rely on information from a confidentialsource. While publishing the information, the reporter should try toget corroboration from other sources and documents that are notconfidential. Therefore, in case of a subpoena, the reporter caneasily identify the source of the information as the non confidentialsource. This will assist him to conceal the identity of theconfidential source as they will have satisfied the call that for aconfidential information to be released the plaintiff need to showthat there is no other way to get the source. Thus, the reporter willbe at liberty to conceal the confidential source. Another great thingthat the reporter needs to find before releasing confidentialinformation is whether the police and other people will requireknowing the identity of the source. It is better that as a reporteryou should not only be the source of the information. A good exampleis a criminal case like that one of Blanzbugh where the police needto identify the reality of the information. Again, the reporter needto consider whether they are capable of using the information withoutdisclosing that it was obtained from a confidential source. When areporter takes this approach, they are able to avoid conflict withthe law and wit their sources pertaining to confidentiality (Pember &Calvert, 2011).
Beforereporter promise source confidentiality, they need to realize thatthey could be sued for breach of confidentiality promise under alegal theory known as promissory estoppel. When the journalists arewith sources that demand confidentiality, they need to inform themthat there is no obligation to grant for anonymity for informationthat has already been provided. They should also inform them thatthey will reveal the identity of the source if they are subpoenaed.This will protect the journalists from getting into promises thatthey are not capable of fulfilling (Pember & Calvert, 2011).
Theselaws offered reporters some protection against being forced to revealthe identity of confidential sources. The shield laws were adopted bydifferent states at different times and as so they are different inthe different states in the scope of protection and the definitionsthat are used. In either more or less limited term, these laws aremeant to outline the privilege of the reporter that has beenestablished by the state. The establishment of these statutes are onwho can use the privileges, the information kinds that are protectedby the privilege, and any qualifications that might have accrued. Inaddition to protection concerning non disclosure of news sources,shield laws also protect authors of non fictional books that touch onmatters of public interest from disclosing their confidential sources(Pember & Calvert, 2011).
Thenew sources and the old sources legal implications are the same inthat for all of them, when the reporter or the company that providedthe information is provided with a subpoena, they must provide theperson who gave the information. The new media like the internet hasposed a new challenge where people are capable of posting anyinformation that could have defamatory effects. In such cases, theinternet service providers responsible for the site are served with asubpoena to provide the person responsible for the information. Insuch a case they must abide by the subpoena and give the source ofinformation (Pember & Calvert, 2011).
Thecase of Branzburg vs. Hayes shows a case where ethics need to bapplied before publishing any information. This is because journalismshould not be aimed at destroying the reputation without clear proof.Where the ethics are violated the law comes in to give justice. Thatis why a subpoena is served when a person gives confidentialinformation that is deemed sensitive. Though journalists areprotected by the shield laws against disclosing confidential sourcesf their information the Supreme Court ruled out that the FirstAmendment does not allow journalists to conceal the source ofconfidential information. Thus if a journalist gives an informationand conceals the source, and another arty goes to the court to makethe reporter give the identity of the source the reporter is mandatedunder the jurisdiction of the court to provide the source. Failure todo this will see the reporter charged with contempt of the court thatcould lead to his jailing.
Forthe reporter to protect themselves from this they need to communicatewith the source and inform them that they will provide their identityif asked to do so by the court. This is because if a reporter revealsthe confidential source without permission they can b charged by thesource in a civil court for monetary damage for breach ofconfidentiality promise under a legal theory known as promissoryestoppel.
Pember, D. R., & Calvert, C. (2011). Mass Media Law 17e Ch09 (pp. 303-369). In Mass media law. Dubuque, Iowa: McGraw-Hill Higher Education.
Pember, D. R., & Calvert, C. (2011). Mass Media Law 17e Ch10 (pp. 367-411). In Mass Media Law. Dubuque, Iowa: McGraw Hill Higher Education.