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Confidential Sources and Information: Constitutional privilege protects sources

The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes.³ The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.

However, Justices Lewis Powell and Potter Stewart recognized a qualified constitutional privilege in separate opinions. Two other justices joined Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority.

Since Branzburg, many federal and state courts have acknowledged the existence of some form of qualified constitutional privilege. Where the privilege is recognized, the courts generally utilize a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media.

The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the reporter was a witness to a crime. When an important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify.

In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, or to the defendant's defense.

Additionally, many states will not allow reporters to assert shield law protections to avoid testifying if they witness criminal activity.⁴

A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts frequently find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony.

In libel cases, however, reporters who are defendants may face demands to reveal their confidential sources, particularly if the contested information is the basis of the allegedly defamatory reports.

Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations.

A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory.

The plaintiff also must prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case.

Courts also have begun to recognize that subpoenas issued to non-media entities who hold a reporter's telephone records, credit card transactions, or similar material may threaten editorial autonomy, and the courts may apply the reporter's privilege if the records are being subpoenaed in order to discover a reporter's confidential sources.⁵

Notes

3. Branzburg v. Hayes, 408 U.S. 665 (1972).

4. See, e.g., Florida v. Davis, 720 S.2d 220 (Fla. 1998) and Minnesota v. Turner, No. C5-95-2668 (Minn. July 18, 1996).

5. See, e.g., Philip Morris Cos., Inc. v. ABC Inc., 23 Med. L. Rptr. 1434 (Va. Cir. Ct. 1995) (order protecting reporters' records held by third parties) and Colorado v. Thill, No. 98-CR-621 (Colo. Dist. Ct. Feb. 5, 1999) (granting motion to exclude evidence regarding reporter's telephone records obtained from third parties).

Next section: Confidential Sources and Information: A reporter's obligation to a source