Day: Chapter 6

Last Updated: Sunday, April 28, 2002  

Why is confidentiality important to reporters?

• Reporters need to protect their sources
• Sources won't provide information if they believe they will be revealed 

Why is confidentiality important to society?

• We sometimes need to keep secrets
• Promises are meant to be kept or they mean nothing.
• Think about the last time some one you trusted shared with someone else information you had given them in confidence.  Think back to junior high and the "did you know so and so likes ....?"  

But what happens when conflicting values occur?

• What happens if your confidential source lets you know a crime is going to be committed and someone might be hurt?
• What happens if you know who committed a crime?

There are many other potentially conflicting situations involving confidentiality. That's why it's important to take a look at this issue before you get involved.

There are three ways that confidential source relationships usually occur:

• Express Promises:
  • Here the reporter promises anonymity to a source
  • There is a contract of secrecy
  • A promise of NO attribution
  • Both the reporter and the source understand the agreement
  • Two types of agreements usually occur, and it's very important that you understand these terms and their definitions:
    • OFF THE RECORD: This is information for the reporter, but it is not to be published.
    • ON BACKGROUND: This material is provided as background or briefing information to give credibility or additional perspective to a story. The source is identified as "a government official," "a Pentagon official," or "someone close to the President."
• Sense of Loyalty:
  • The reporter knows a friend, personal secretary, etc. who has information
  • This person trusts the reporter, and the reporter does not want to betray that trust
• Legally Recognized Confidence:
  • Some relationships are perceived to be so important, they are recognized by law.
    • Doctors
    • Lawyers
    • Pastors
  • In some states reporters have such privilege to confidentiality
    • The assumption is that breach of a confidence might actually endanger some one (much more than embarrassment)
    • Similarly, reporters who testify before a grand jury cannot report on those proceedings.
    • ALABAMA CODE 12-21-142 provides reporters privilege in this state.
      • "No person engaged in, connect with employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gather capacity, shall be compelled to disclose in any legal proceeding or trial,.....(materials gathered for a story broadcast or published

Lately, state legislatures and lower courts have afforded some protection for reporters. Shield laws, like the one discussed earlier provide that protection.

The first court ruling on the issue was in 1958, when a reporter was jailed for not revealing a source (Garland v. Torre). She was jailed for 10 days in contempt of court. She appealed, and the Supreme Court ruled that the right to keep a source confidential had be compromised in order for a court to be able to do its job. (Overbeck, 1999, p. 285)

It wasn't until 1972 with Branzenburg v. Hayes that the issue was settled in any sense. While the Court decided against journalistic privilege, the decision was 5-4 four and Justice Stewart's dissent turned out to be the most important part of the case, because it was used by a number of states as the basis for their shield laws:

He made the point that before a reporter should be compelled to reveal a source, three things were necessary:

• There is probable cause to think the reporter might have information related to a crime that is very likely to happen
• There needs to be no other way to get that information that is less threatening to the First Amendment
• There must be a "compelling and overriding need" for the information

This three-part test has been accepted in some form by many states.

The important questions isn't answered by the shield laws. That question is: Should a reporter ever promise confidentiality?

• When you do, you open a whole can of worms
• Sometimes reporters promise it when it is not necessary

How do you decide when to use it? Here are some things to consider:

• Without anonymity, it is very probably that some sources just wouldn't be there.....People aren't going to blab when it risks their lives or livelihood.
• Sometimes, law enforcement allows reporters to do some of their investigative work, and then expect to get the information. That makes the press and "arm of the law" and can compromise a reporter's ability to do investigations at all. No one will trust him or her.
  • What is the journalist's role here?
  • What happens if you find a parent who has kid-napped a child as Phil Donahue did in the 1980s. You do the show and then what? What are your obligations to your source? What are your obligations to the other parent? What are your obligations to the child? To the society as a whole?
  • What do you think?
• Confidentiality takes the decision-making process away from the audience.
  • The audience can't look at the facts and their origin and decide how credible, truthful or relevant they are.
  • The journalist usurps that role from the audience.
  • Who are the sources? Are they responsible? Credible?

• Confidentially can get a reporter "off the hook" journalistically. It's a good way to cover up the fact that the reporter hasn't done the homework.
  • May not have the sources to make the story stick
  • May not have gone through the editorial rigors necessary for journalistic integrity
  • Editors can't make decisions about the story without appropriate information.  

What are the opportunities for the mis-use of confidentiality?

• Sometimes other issues may be as important as "keeping a promise."
• The decision may not be thought through effectively at the three areas where those decisions are made:
  • when the reporter decides to offer confidentiality
  • when the reporter decides to reveal the source to a superior or an editor
  • when the reporter considers breaking the process

Media codes are not a lot of help here either, as with other issues. They are very general and don't apply to every situation. However, more and more institutions are developing policies for themselves.

When is it appropriate to break the promise of confidentiality?

• If you don't tell when told to do so by a court of law, you go to JAIL! Your employer could also get slapped with major fines or monetary damages.
• Setting the record straight: This may be necessary if the source was using the report for his own ends and the public needs the information.
• If the public needs to have the information about
  • a public official
  • a public issue
  • or other significant issues

Be sure you are familiar with the cases in the chapter.

Some recent court decisions illustrate the complexity of the situation and the variation in rulings from state to state.

In 1999, a riot occurred at Michigan State University and was photographed by 11 news organizations. Revelers burned furniture and a cars and did more than $140,000 in damage. Law enforcement officials wanted the photos and video to identify the participants. The news organizations refused. On appeal, the court ordered all eleven to turn over their unpublished/unbroadcast materials. Some organizations had already turned over those which had been published. (Associated Press, 4/23/99)

In New York, the court took a different approach. A federal appellate court actually reversed its earlier ruling and determined that reporter's notes and video outtakes were protected under a qualified privilege. The decision concerned an NBC Dateline story about police misconduct in Louisiana. NBC refused to provide law enforcement officials with outtakes of the story, concerned that the reporters would become an arm of the law. The court in its later decision ruled that if the reporters notes/video could be subpoenaed at will, such practice would become commonplace and the press would indeed become an arm of the law. (Trigoboff, 9/6/99)

A confidentiality issue also is related to the Richard Jewell case. It seems Richard Jewell was the process of suing the Atlanta Journal-Constitution for libel, but in order to do so effectively, he needs to know who gave the paper the story to the accusing him of being the Olympic Park bomber. The judge ordered the paper to comply. (Renaud, 1999) The paper appealed the judge's decision (Ringel, 1999)  

Related to privacy, the names of juveniles and other related information is sometimes considered confidential. See Kathleen Kirby's article for the Communicator  regarding this issue.  "Widening Access to Juvenile Courts." 

See "Keeping Confidences" by Kathleen Kirby.  In the article she discusses reporter's privilege and how some things aren't privileged.  For example, in course cases, the reporter's personal phone records, credit card statements, etc. could be subpoenaed and would not be protected as privileged information.  The issue of outtakes is also important.  What is not included in the final story, and does the court have the right to request those tapes? 

In the last few months, the Congress passed "anti-leak" legislation which would have made it a felony to disclose classified information and imposed fines and up to three years in jail for those convicted.  The RTNDA urged the president to veto the legislation, and he did so in November, 2000.  The RTNDA believed such a law would dry up normal sources of government information and essentially create a "government secrets" bill.  With a new administration, it may be likely that such a bill would be passed again and signed into law.  See http://www.rtnda.org/news/2000/ractvall.html  

See "Blow Up" in Brill's Content for confidentiality issues surrounding JFK, Jr.'s death. It's a long article, but interesting. 

There is a current controversy brewing in Missoula, Montana, where a University of Montana journalism student shot video of a disturbance during a Hell's Angels visit to the city.  The police wanted copies of her video to figure out who to charge.  She contends that she is privileged, even though she was not employed by a news organization at the time. She did provide video which was used in some news casts and later made a documentary which aired on public access television.   The judge has yet to decide the case.

Be sure you check out the Radio Television News Director's Association Guidelines: Using Confidential Sources  

Several recent cases are significant. Each concerns the issue of source confidentiality and journalistic ethics. Be sure you understand the basic details of each case:

• The Watergate Break-In story during the Nixon Administration
• The "Janet Cook" affair.
• The Chiquita Banana email case
• The Tail Wind for CNN-TIME
• The CBS-60 Minutes Cigarette Story.
• Coverage of the Monica Lewinsky story.

The following links will provide information for both of those. Your book provides basic information about the Watergate story and the Janet Cook affair.  The following are not lengthy stories, but do deserve your attention.

Required Reading  links :

• Boylan, James. "Punishing the Press: The Public Passes Some Tough Judgments on Libel, Fairness and Fraud.  Columbia Journalism Review, March/April, 1997. http://www.cjr.org/year/97/2/punishing.asp
• Guensburg, Carol. "Show Time in San Jose." AJR Newslink. 4/4/2000 .http://ajr.newslink.org/ajrby92.html
• Graves, Florence. "Protecting the Privilege." American Journalism Review. April, 1998.
• http://www.ajrnewslink.org/ajrfloapril98.html
• Grossman, Lawrence. "Lessons of the 60 Minutes Cave In." Columbia Journalism Review, February, 1996. http://www.cjr.org/year/96/1/60minutes.asp
• Paterno, Susan. "An Ill Tailwind." American Journalism Review. September, 1998. Http://www/ajrnewslink.org/ajrsusansept98a.html and http://www.ajrnewslink.org/ajrsusansept98b.html
• Reider, Rem. "A Gift that Keeps on Giving: When a Reporter Burns as Source...." American Journalism Review, May, 1999. Http://www.ajrnewslink.org/ajrmayrem99.html 
• Shepard, Alicia. "Bitter Fruit: How the Cincinnati Enquirer's Hard-Hitting Investigation of Chiquita Brands International Unravelled." American Journalism Review,  September, 1998 at http://ajr.newslink.org/ajrlisasept98a.html 
• Robertson, Lori. "Who Do You Trust?" American Journalism Review, August, 1998. Http://www.ajrnewslink.org/ajrlorijuly98.html
• Ventura, George. "I Trusted A Reporter." Bill's Content. February, 2000. Http://www.brillscontent.com/ventura1_0200.html and http://www.brillscontent.com/and http://www.brillscontent.com/ventura4_0200.html  

Extra Credit Options:

Copyright, 2001

Dr. Janet McMullen