The Dimensions of a Journalist's Shield-first Amendment Protection for the Confidentiality of News Sources Against Requests for Court-ordered Disclosure in Civil Cases

• Publication year: 1983

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No. 2SPRING 1983

COMMENTS

The Dimensions of a Journalist's Shield-First Amendment Protection for the Confidentiality of News Sources Against Requests for Court-Ordered Disclosure in Civil Cases

Frank Van Dusen

Before the 1970's, courts refused to find any constitutional or common law protection for the confidentiality of news sources when journalists resisted disclosure requests.(fn1) Recently, however, both federal and state courts have begun denying disclosure requests in civil litigation, reasoning that unlimited disclosure deters the free flow of information from news sources to the public.(fn2) Viewing this free flow of information as a first amendment interest of the public, the courts have found that this interest warrants protection from the deterrent effect of court disclosure orders.(fn3)

Although journalists have won some protection for their news sources, this protection is not absolute.(fn4) Employing various balancing tests, the courts have found that in some cases a civil litigant's need for the identity of the confidential source is greater than the first amendment interest in keeping the news source's identity secret.(fn5) But in striking the balance between the state's interest in providing the litigant with an effective forum and the public's first amendment interest, the courts have failed to provide predictable protection for confidential news sources.(fn6) This comment suggests a test in civil cases that enables a court to determine if there is a first amendment interest in protecting the source's confidentiality.(fn7) If the journalist can demonstrate this interest, then the burden shifts to the litigant seeking disclosure. This comment suggests three criteria through which the litigant must persuade the court that the state's interest outweighs the first amendment interest. By using this clear, concise test, the trial court need not engage in a separate interest balancing test in each case.(fn8) The test suggested by this comment should increase protection for the first amendment interest by decreasing the number of disclosure orders issued and by giving journalists and their confidential sources a basis for predicting in advance of publication whether a disclosure order is likely.(fn9) Less frequent and predictable disclosure orders will reduce the deterrent effect of such orders,(fn10) protecting the constitutional interest in the flow of information to the public.

In many states, a journalist and his news source have some statutory protection from forced disclosure.(fn11) However, language in the statutes(fn12) and potential constitutional limitations(fn13) may reduce or nullify the statutory protection. In federal courts,(fn14) and in states(fn15) in which the statutory protection is inadequate or nonexistent, journalists frequently resort to claims of first amendment protection.(fn16) The United States Supreme Court, however, has never fully defined the parameters of first amendment protection for journalists' confidential news sources in civil cases.

In Branzburg v. Hayes,(fn17) the Supreme Court did address the issue of first amendment protection for news sources, when a grand jury seeks the identity of the source in the context of a secret criminal investigation. Although the Court acknowledged that "without some protection for seeking out the news, freedom of the press could be eviscerated,"(fn18) Justice White's majority opinion held that these journalists had no first amendment right to withhold testimony from a grand jury.(fn19) Specifically, the Court found that existing grand jury procedures provided adequate protection for a newsman's sources.(fn20) The procedures cited for this finding were the secrecy of grand jury proceedings, a prosecutor's charge to consider the public interest, and the prosecutor's experience in protecting police sources.(fn21) These factors ensuring the confidentiality of a news source in a grand jury proceeding are not present in a civil case. Thus, the Branzburg majority's opinion should have limited application outside of the grand jury setting.(fn22)

The concurring opinion of Justice Powell(fn23) and the four dissenting Justices'(fn24) analyses further limit the precedential value of Branzburg. Although Justice Powell joined the majority opinion, his brief concurring opinion emphasized the limited scope of the majority opinion and agreed with the four dissenters that there was a first amendment interest in protecting the news source's confidentiality.(fn25) Justices Stewart's(fn26) and Douglas'(fn27) dissenting opinions placed even greater emphasis on the first amendment rights at stake when a journalist's confidential news source faces disclosure through a court order. Some courts(fn28) and commentators(fn29) have argued that the four dissenters together with Justice Powell represented a majority of the Court supporting constitutional protection of news sources in non-grand jury settings. Even if this "majority" does not form a basis for constitutional protection of news sources, the Justices' reasoning at least reaffirms the limited applicability of the Branzburg holding.

Although Branzburg may not articulate the degree of first amendment protection for sources in civil cases, lower federal courts have suggested that the first amendment interest underlying a journalist's request for protection of his source's identity is the public's need to be fully informed.(fn30) The states adopted the first amendment at a time when an informed public was viewed as a prerequisite to a democratic system.(fn31) The Court has recently held that "freedom of the press" protects those activities that ensure that the public has the information essential to a system of self-government.(fn32)

Thus, first amendment protection goes beyond the direct exercise of the freedoms of speech and press to protect activities vital to the exercise of those freedoms.(fn33) Because the Court has clearly identified these first amendment rights as the public's,(fn34) the journalist seeking first amendment protection for his confidential source is not exerting a right of journalists as a class(fn35) or of the source as an individual.(fn36) The extent of this public right of access to information or to unrestricted news gathering is not clear.(fn37) The Court, however, has held that the freedoms of speech and press must be vigorous enough to provide a check on the government, such a check being an "essential component in our structure of self-government."(fn38) If court-ordered disclosure of confidential news sources impairs the public's ability to acquire the information essential to effective self-government, the orders impinge on the public's first amendment rights.(fn39) If court orders deter future news sources from providing the public with information through the press, then the courts are impairing the exercise of first amendment freedoms.

Empirical data on the deterrent effect of disclosure orders are inconsistent and incomplete. Surveys of publishers(fn40) and affidavits from individual journalists(fn41) indicate that guaranteed confidentiality is a critical element of the flow of information to the public. Other surveys(fn42) find no deterrent effect. But even unanimity would not make these surveys determinative because journalists, rather than the sources, are the respondents to the surveys. A definitive finding could be obtained only by surveying those potential sources who decide not to give their information to the public via journalists, a concededly difficult, if not impossible, survey to implement.

In the absence of definitive data, the federal appellate courts have found the deterrent effect self-evident.(fn43) A self-evident finding is consistent with the Supreme Court's position that disclosure of confidential sources for law enforcement agencies would deter the flow of information essential for effective law enforcement. InMcCray v. Illinois(fn44) the Court found disclosure's deterrent effect on confidential police sources self-evident because of the personal safety concerns of the sources.(fn45) The Court has identified similar personal safety concerns for news sources unable to maintain their confidentiality.(fn46) These personal safety concerns are part of the apparent self-evident deterrent that federal appellate courts have inferred from the prospect of forced news source disclosure.(fn47)

Furthermore, a source who fails to make confidentiality a prerequisite for parting with his information can hardly claim that he was unlikely to volunteer information if he subsequently faces forced disclosure. The first amendment concern for the flow of information from the news source to the public is present only if the source requires confidentiality before parting with the information/(fn48) There is no self-evident burden on the first amendment interest when, in the particular case, the prospect of a disclosure order did not concern the source.

The interest in protecting a news source's identity, although of great significance to the first amendment freedoms, is not absolute.(fn49) Balanced against the public's first amendment interest in the flow of information is the state's interest in a civil litigant's ability to obtain all the information necessary to the resolution of his case.(fn50) The state's interest in providing an effective forum to...