National security information flow: from source to reporter's privilege.

• Author: Bejesky, Robert
• Position: VI. Reporter's Privilege and Risks through VIII. Conclusion, with footnotes, p. 435-472

REPORTER'S PRIVILEGE AND RISKS

IDENTIFYING AND BALANCING POLICY INTERESTS

Recent cases have returned attention to the question of whether journalists should be able to acquire and publicize classified information, and whether the reporter's source can remain confidential if legal proceedings necessitate the source's testimony. Journalists claim that a "reporter's privilege," which can shield the identity of confidential sources from disclosure during court processes, (199) is essential because the privilege stimulates an uncensored "free flow of information," (200) supports the public's "right to know" government activities, and emends populace understanding of policies. (201) Justice Stewart considered maintaining source confidentiality--a right implicit in gathering the news. (202) To journalists, revealing a source's identity after promising confidentiality to that source in exchange for accurate information is considered a breach of journalist ethics (203) and could result in liability under promissory estoppel. (204) The New York Times Chairman, Arthur Ochs Sulzberger, and Chief Executive Officer, Russell T. Lewis, contend "[t]he press simply cannot perform its intended role if its sources of information--particularly information about the government--are cut off .... Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report." (205)

Alternatively, industry interest may not be innately united with public interest. In Branzburg v. Hayes, which set the governing precedent, the Supreme Court doubted that a constitutionally-based protection was necessary to facilitate a free flow of information. (206) Moreover, the Court surmised that advocacy for a privilege was driven by the "professional self-interest" of reporters. (207) Reporters have self-interest in breaking a big story; they may feel empowered by possessing a secret source; or, they may mistakenly overestimate the value of the information to public discourse.

Also, there is the judicial interest in safeguarding the equipoise of parties to litigation. Professor Robert Zelnick summarized this concern, stating:

In an era when sitting presidents have been compelled to produce incriminating evidence or remain available for ordinary civil lawsuits, I have found it difficult to see why a member of the press should be immune from testifying about a crime he has witnessed or an event that affects the rights and liabilities of parties to a legal dispute. (208) However, the utility of a news account to public discourse could conceivably outweigh the needs of a court if a whistleblower would only anonymously expose something illegal, unethical, (209) or imperative to democratic dialogue (210) after a guarantee of confidentiality. Still, even with this derivative contingency, the value of a source's information is a fact-intensive question that is likely unsuitable to inflexible ex ante rules.

From the analyses in Parts I through V, it seems unreasonable to unconditionally protect anonymity when a source's information may not be valuable to public discourse, but could instead be part of the "game of leaks" that reporters cannot disentangle. (211) If journalists are unable to adequately distinguish, assess, and methodize varieties of asymmetric information, such as between authorized and unauthorized leaks, the risk of perpetuating false stories that could cognitively impact three hundred million Americans is a danger that should outweigh a reporter's privilege. Moreover, even if media outlets strive to conscientiously and objectively assess the confidential source's self-interest, accounts, (212) and potential for abuse, (213) media outlets may also need to beware of their own journalists. (214) Consider the following recent cases of journalist fraud, which one can only hope is a remote anomaly.

In June 2003, Howell Raines and Gerald Boyd, two top editors at The New York Times, resigned because Jayson Blair, their subordinate, "committed frequent acts of journalistic fraud." (215) The New York Times wrote that Blair's "widespread fabrication and plagiarism represent[ed] a profound betrayal of trust and a low point in the 152-year history of the newspaper .... He fabricated comments. He concocted scenes. He lifted material from other newspapers and wire services." (216) Similarly, in mid2003, USA Today began investigating Jack Kelley, a foreign affairs correspondent and top writer, over whether his reporting was adequately sourced. (217) The newspaper ultimately concluded that Kelley's twenty-one years of reporting and over 1,400 stories covered revealed a "pattern of lies, deception, and plagiarism." (218) Kelley and Managing Editor Hal Ritter resigned, while Publisher Craig Moon apologized. (219) Both periodicals conducted internal investigations and printed "high-profile mea culpas to maintain their readers' trust and confidence." (220) Both investigations revealed intrinsic problems with using confidential sources (221) and editorial lapses in verifying the accounts of confidential sources. (222) If there had not been a norm that permitted the use of confidential sources, the means of concealing falsities within stories would have been reduced.

DISTINGUISHING REASONS FOR THE PRIVILEGE

To more fully assess the utility of a reporter's privilege in relation to the opening analytical framework, and to appraise whether recent advocacy for statutory formulae to protect source confidentiality is favorable, the chronology of non-national security cases is probative because it preceded and ostensibly influenced the precedent that now governs national security cases. The two contexts are theoretical analogies, but involve dissimilar needs, premises, and public interests.

The first confidential source privilege context arose during the nineteenth century, an era in which "at least 222 correspondents, news writers, and editors ... were asked by congressional committees ... to identify sources or disclose other information." (223) Leaks to reporters often exposed government corruption and wrong doing; and, when investigations followed to substantiate the merit of charges, journalists were sometimes subjected to criminal prosecutions for failing to reveal confidential sources. (224) Since then, most questions of reporters attempting to shield confidential informants have arisen in grand jury proceedings, civil cases (particularly libel cases), and criminal cases. (225)

In 1958, for example, Marie Torre became the first reporter to proffer a confidential source privilege in a civil proceeding. (226) In that case, Judge Potter Stewart, before being appointed to the Supreme Court, asserted that protecting confidential sources was important to fostering the free flow of information; nonetheless, he ordered Torre to divulge the confidential source because the source was essential to the merits of Judy Garland's libel action. (227) This case was followed by an abrupt upturn in privilege assertions, predominantly because journalists granted promises of confidentiality to leaders of groups that protested the Vietnam War and advocated for civil rights and social justice causes. (228) From 1960 to 1968, the government issued only 1.5 subpoenas per year on journalists, but the Nixon Administration entered office in 1969 and issued seventy-five subpoenas per year during 1969 and 1970. (229) This period was arguably the last example of vigorous journalism that sought to check government in ways consistent with the Framers' vision for the press. (230)

Subsequently, in Branzburg, Paul Branzburg refused to testify about his confidential source for articles involving drug activities that were published in The Courier-Journal, a Louisville, Kentucky, daily newspaper. (231) In a 5-4 decision, the Supreme Court held that reporters do not have a First Amendment right to refuse to answer grand jury questions, including inquiries about the identity of confidential sources. (232) The Court reasoned that the interests, needs, and rights inherent in the judicial process were sufficiently substantial "to override the consequential, but uncertain, burden on news gathering ... [And r]eporters, like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial." (233) The Court rejected "the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future." (234) With Branzburg controlling, journalists can expect to have to disclose confidential sources in grand jury proceedings. (235)

By the mid-1970s, journalists attempted to assert rights directly from the Press Clause to protect source confidentiality, access courtrooms and prisons, restrict law enforcement authorities from searching newsrooms, and defend libel cases. (236) Arguments naturally hinged on Press Clause interpretation, and debate resultantly increased over whether the Framers intended a special First Amendment protection for journalists beyond what is available to the general public. (237) Some scholars maintained that there should be no distinction between the Press and Speech Clauses, (238) while others asserted that there should be elevated protection for the press as a facilitator of democratic dialog. (239) The Supreme Court has itself cited the Press Clause together with the Speech Clause to reference its importance, (240) and Justice Stewart favored recognizing an institutional Press Clause right. (241)

That notwithstanding, a majority of "the Court has never explicitly recognized that the Press Clause involves any significant content different from that provided to all individuals by the prohibition on...