Convincing a judge of the importance of confidentiality

In the absence of a federal shield law protecting publishers from revealing confidential sources and other information obtained while newsgathering, courts that recognize the privilege under another source of law apply a balancing test that weighs the need for disclosure against First Amendment interests.

Identifying one of the most compelling of these First Amendment interests is easy: Forcing a journalist to reveal a source not only greatly burdens the reporter but threatens his or her ability to inform the public about government wrongdoing. Convincing a court of this importance, however, is significantly more difficult.

Judges, most of whom have little experience in this area, view a publisher’s resistance merely as an attempt to keep information out of his or her courtroom and not as a privilege equally important as, in the language of the judge’s industry, the attorney-client privilege. If a court is convinced that the anonymity guaranteed to confidential sources is essential to ensure a watchdog journalism that holds those who are in power accountable to the public, then bloggers and other web-based writers subpoenaed to testify before it face greater protection for confidentiality.

And perhaps the most effective way to educate a judge of such is through journalist testimonials, or affidavits from reporters accounting for the court real-life examples of how a particular story would not have been published had it not been for the ability to protect the identity of the source.   

Here are some important things to keep in mind if you are considering a similar strategy:

• The affidavits should accompany your motion to quash the subpoena.

• In considering who should submit affidavits, try to find authors whom the judge may recognize and who have been around for a while, are not viewed as biased or overly extremist and can provide compelling examples.

• Affidavits that provide examples of the necessity of the privilege in the specific context of the Internet would likely prove particularly insightful.

• Submission of an affidavit from an unlikely source, a former federal prosecutor, for example, lends credibility to the issue.

• Pick your battle carefully. In some cases, most likely those involving issues of national security, the arguments in favor of the need for the information are so compelling that even a judge highly familiar with the reporter's privilege and its important purpose would find it outweighed.