Journalistic confidentiality issues have returned to the courts with a bang in recent months, with (at times) daily fines being levied on reporters held in contempt for refusing to reveal their confidential sources. Several journalists have been threatened with jail for the same "offense." Legally, these journalists are in a gray area, since the courts have ruled in recent decades that there is only limited First Amendment protection for journalists who refuse to testify as to the names of their confidential sources...but the issue of exactly where those limits lie remains unresolved. Relatively little attention has been paid to the ethical dimensions of this conflict in recent years, and I'd suggest that if both journalists and those seeking disclosure of confidential sources (or material) would use ethical as well as legal principles in approaching this issue, the number of legal confrontations might be reduced.

Journalists' claims of legal protection for confidentiality are based on their need to protect credibility with their sources and potential sources. But that need clashes directly with the general (although not pervasive) principle that the law must have every person's evidence to operate effectively. The journalists' claims for an exemption from testifying go back at least to the mid-1800s,1 and were given some constitutional protection in the 1972 Supreme Court decision in Branzburg v. Hayes.2 The Supreme Court has not accepted any journalistic confidentiality cases since then, and while lower federal courts have often provided conditional First Amendment protection, there have also been a few decisions denying any constitutional basis for this claim.3 This has led to what one scholar referred to as "a haphazard [pattern of protection] over the last thirty years."4

State as well as federal courts have dealt with this issue over the years, with varied results. In the 31 states that have "shield" laws granting journalists testimonial exemptions for confidential sources and/or materials-with varying degrees of protection-courts have often sided with journalists' refusals to testify. But this hasn't always been the case. In Minnesota in 2004, a part-time sports reporter wound up being assessed $200 daily fines that eventually totaled some $18,000, for refusing to reveal confidential sources in a lawsuit brought by a fired coach against the school district that dismissed him. The Minnesota Supreme Court refused to protect the reporter despite the existence of a fairly protective state shield statute, and the fines ended only when the lawsuit was settled just before trial.5

In addition to the legal issues involved, there are some important ethical concerns here...and these have often been overlooked in the 150-plus years that this issue has been argued in legal forums. The early clashes in courtrooms and legislatures usually involved journalists-typically as third parties in a dispute-arguing that, ethically, they were bound to keep promises of confidentiality to their sources. Along with this was the practical point that violating such promises would cause sources to dry up, to the detriment of the public good. Journalists also argued (almost always unsuccessfully) that confidentiality should be protected by common law and, occasionally, they were able to rely successfully on state shield statutes. Since Branzburg v. Hayes, journalists have added to their defense arsenal the stronger sword of a First Amendment protection for confidential relationships, albeit with mixed results.6

This focus on legal arguments leaves unanswered (and often unasked) the ethical questions of when and how often journalists should use confidentiality as a reporting tool, and-when it is used and comes into conflict with the legal system's testimonial requirements-the circumstances under which parties to a case should try to force journalists to violate promises of confidentiality. Inherent in the journalists' side of this equation is a concern about when and whether journalists are justified in trying to protect non-confidential information (including their notes) from disclosure, and both state shield laws and court decisions have provided conflicting answers on this point.

From an ethics standpoint, more questions need to be raised as to whether journalists are overusing claims of confidentiality, even in situations where it's not necessary to obtain the information for a story...or where that information (or the story itself) is fairly trivial. As a legal scholar, I applaud Marie Torre's 1950s invocation of the First Amendment to protect her from revealing which CBS vice-president made highly unflattering comments about Judy Garland's weight and mental state, leading to Garland's suit against the network for libel and breach of contract.7 As an ethicist, I cringe a bit at First Amendment principles being used in connection with an item that really doesn't matter in the grand scheme of a self-governing society. This may well have been a case where confidentiality shouldn't have been promised in the first place, and if that meant that the Garland item never got published in Torre's gossip column about the entertainment industry, then so be it.

It's even more unconscionable for journalists to invoke the First Amendment to safeguard their economic interests rather than out of concern for protecting the free flow of information that a self-governing society needs. This was apparently the situation in McKevitt v. Pallasch,8 a 2003 case arising in Chicago where the journalists had a conflict of interest stemming from their apparent attempt to keep from public disclosure non-confidential information they intended to use as part of a forthcoming book.9

Journalists who may be tempted to promise confidentiality without thinking through the ramifications, and whether it is really necessary, need to ask themselves the questions posed by Justice Potter Stewart in his 1972 dissent in the Branzburg case. Stewart outlined a qualified First Amendment privilege against revealing confidential sources-one which would hold unless the party seeking disclosure could demonstrate probability that the information was relevant to the case, that it could be obtained in no other way, and that there was "a compelling and overriding" societal interest in having the information revealed.10 Stewart posed these criteria in a legal context, but they can be used equally well in an ethical setting. The difference, of course, is that Stewart argued (with some success in subsequent cases, as it turned out) that there should be First Amendment protection for confidentiality unless all three conditions were satisfied. I'd suggest, in the ethical context, that journalists should not promise confidentiality unless it involves information that is really relevant to their story, the information is absolutely unavailable from other sources, and the story is in fact one that society needs to know.

Assuming that the information is relevant to the story, journalists need to ponder the next two criteria carefully before promising confidentiality. They must not use confidential sources just because that would be easier than digging hard to find sources who are willing to be named. (Identifying sources would also have the benefit of helping to increase the credibility of news media with the public.)

As for determining what stories the public really needs to know, Alexander Meiklejohn's work can provide definitional guidance.11 Stories dealing with matters of public policy, as distinct from matters involving private affairs, clearly fall into the category of information needed in order to have an informed electorate. Promises of confidentiality would therefore always be ethically appropriate in such circumstances if the other two criteria are met. Some stories involving private matters may meet that criterion as well, but there the decision would need to be made on a story-by-story and topic-by-topic basis.

If journalists were to follow these guidelines carefully, they would bolster public confidence in journalism, and help safeguard the somewhat fragile legal basis for protecting confidentiality when push comes to shove and cases do wind up in court. They would also decrease the chances of having their editors override promises of confidentiality, as happened in Cohen v. Cowles Media,12 a case that led some newsrooms to require an editor's okay before a promise of confidentiality was extended to a source.

Those on that other side ought to apply Stewart's legal test to the situation before trying to force journalists to violate promises of confidentiality. But, in doing so, they would do well to be guided by some ethical concerns as they assess the meaning of those 1972 criteria. For example, is there really no alternative source of information available, or is it just easier to try to force the journalist to disclose where the information came from? Are they seeking specific information for a specific legal purpose, or are they just on a "fishing expedition," hoping to land something that might possibly help their case? And courts need to ponder carefully whether the proceeding is one that is truly important to the society overall (rather than, say, an effort merely to vindicate the dignity of a judicial or a legislative body), and whether the information sought is so crucial that it would subvert that proceeding to have it remain unavailable.

To be sure, there are legal dimensions to all of those questions, but there are ethical ones as well, and those deserve more overt consideration than they have often been accorded.The history of journalistic confidentiality has far too many examples of news people being punished in situations where alternative sources might have provided the information, of "fishing expeditions," of information that turned out to be irrelevant, and of attempts to force disclosure mainly because a judge or a legislative body was offended by the claim of privilege.13

A utilitarian approach-trying to achieve the most good for the most people-along with a healthy component of avoiding extreme positions is very much needed here. Too many parties trying to force disclosure seem to focus on their own narrow needs and convenience, rather than considering the larger societal good (which includes that knowledgeable citizenry noted earlier). At the same time, journalists and their supporters also need to focus on that larger good, rather than having a knee-jerk reaction that says that confidentiality must be protected under all circumstances, at all costs. There will still be definitional disagreements that can lead to good faith arguments on such matters as, for example, how "overriding" the importance of a particular story may be. But following this approach could well lessen the number of instances in which confidentiality is invoked by journalists or challenged by others, thereby decreasing the number of courtroom confrontations that take place between journalists and those on the other side of confidentiality issues.

All that said, how do this summer's confidentiality cases-with at least 13 reporters facing the threat of jail or substantial fines14-fit into this context? Certainly, stories involving who leaked the identity of an undercover CIA operative-and why-fall into the realm of important public policy stories. So do stories about Wen Ho Lee, the former nuclear weapons scientist at Los Alamos National Laboratory who was once suspected of espionage, or federal investigations of Vincent "Buddy" Cianci, the former mayor of Providence, RI, and the performance-enhancing steroids allegedly received by sports figures from BALCO Laboratories. If the information reported wasn't available from non-confidential sources-and that's not unlikely, given the nature of these four examples-then two of the three ethical criteria will have been met. If, beyond that, the information obtained confidentially was crucial to telling those stories fully (something that can't be ascertained from the outside), there is ethical justification for using confidential sources in reporting these situations. And, on the other side of the ledger, the question must be asked as to whether society will benefit more from the forced disclosure of those confidential sources than it would from protecting the ability of these and future journalists to get information about such topics from sources who fear to have their identities revealed.

One reporter in a recent case sought a middle ground by obtaining his source's permission before being questioned in a deposition as part of the investigation of who had leaked a CIA officer's identity. The source, identified only as an "administration official," apparently agreed to reveal his or her identity to the special prosecutor, clearing the ethical way for the reporter to be questioned.15 This development offers a ray of hope that ethics and law might yet work together in dealing with the use (rather than the abuse) of granting sources confidentiality-regardless of how this summer's cases eventually play out.

REFERENCES

Editor's Note: The preceding article focuses only upon what is usually called "reporter's (or journalist's) privilege"-refusing to identify sources whose identity the media have promised to keep secret. Other confidentiality privileges-spousal, clergy-penitent, doctor-patient, lawyer-client-have been generally accepted in American law for many decades, but were not discussed here. Nor was legally imposed confidentiality, from military security classification and grand jury deliberations to the recently declared unconstitutional USA PATRIOT Act's perpetual gag orders preventing third parties (libraries, banks, Internet providers, etc.) from informing their clients of federal investigation of their records.

1 See A. David Gordon, "Protection of News Sources: The History and Legal Status of the Newsman's Privilege," unpublished Ph.D. dissertation, University of Wisconsin, 1971.

2 408 U.S. 665.

3 See, among many other sources, Anthony L. Fargo, "Privilege and Pragmatism: How the Seventh Circuit Put Journalists and Their Sources on Thin Ice," paper presented to the Law Division of the Association for Education in Journalism and Mass Communication annual convention, Toronto, Canada, Aug. 4-7, 2004.

4 Ibid., p. 1. Appellate courts in 15 states without so-called "shield" laws "mostly have said that there is a journalist's privilege protecting confidential information based on their interpretations of state constitutions or common-law development." Ibid., p. 6.

5 http://www.firstamendmentcenter.org/news.aspx?id=1368 (retrieved Sept. 22, 2004). The posted source was an Associated Press story. The fines were more than covered by contributions to a fund for the reporter's defense. See also MINN. STAT. ANN. ss. 595.021 to 595.025 (West, 1988, as amended, Supp. 2000), and note that the conditions for compelling testimony appear to be taken from the criteria in Justice Stewart's Branzburg dissent. See the text at Footnote 9, below.

6 An argument for a strong, but less-than-absolute, First Amendment privilege for journalists' confidentiality may be found in A. David Gordon, "Had Black ruled in Branzburg...," in Everette E. Dennis, Donald M. Gillmor and David L. Grey (eds). Justice Hugo Black and the First Amendment. Ames, IA: Iowa State University Press, 1978.

7 See Garland v. Torre, 259 F. 2d 545 (2d Cir., 1958).

8 339 F. 3d 530 (7th Cir. 2003).

9 The Seventh Circuit refused to allow a privilege that would protect non-confidential information, but did so with language that at least raised some questions about its willingness to allow First Amendment protection for confidential sources. See Fargo, op. cit, pp. 22-26.

10 408 U.S. 665, at 743.

11 See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People, New York: Harper and Brothers, 1960. See also Meiklejohn, Free Speech and Its Relation to Self-Government, New York: Harper, 1948.

12 501 U.S. 663 (1991)

13 See Gordon, footnote 1 above, among many other sources.

14 "3 San Francisco reporters latest to feel confidentiality heat," Associated Press story of Aug. 20, 2004, posted online by the First Amendment Center http://www.firstamendmentcenter.org/news.aspx?id=13892; online news release from the Reporters Committee for Freedom of the Press, Aug. 17, 2004 http://rcfp.org/news/releases/view.php? 2004_08-17-sybpoena.txt, both retrieved Sept. 26, 2004.

15 Society of Professional Journalists Press Notes, Sept. 16, 2004, http://www.spj.org/pressNotes.asp?ref8096, retrieved Sept. 22, 2004, and citing Susan Schmidt, "Post Source Reveals Identity to Leak Probers," The Washington Post, Sept. 16, 2004, p. A02. By contrast, the special prosecutor in the Cianci investigation revealed the confidential source's identy in court papers filed the week before the reporter involved was due to be sentenced, and asserted that the source had not requested confidentiality-a claim strongly denied by the reporter. See SPJ PressNotes for Dec. 2, 2004 (citing a story by Tracy Breton in The Providence Journal), http://www.spj.org/pressNotes.asp?ref= 8727, retrieved Dec. 5, 2004.

*A. David Gordon is professor emeritus, Univ. of Wisconsin-Eau Claire, where he served as chair of the Dept. of Communication and Journalism. In addition to teaching and administrative positions at Northwestern Univ., Univ. of Miami (FL) and Emerson Coll., he spent five years as a reporter for the Wisconsin State Journal (Madison, WI) and three years as assistant to the mayor of that city. He co-authored Controversies in Media Ethics.

The above article was published in Media Ethics , Fall 2004 (16:1), pp. 6,28-30.