A Journalist's Right to Protect Confidential Sources

The Democratic government is a tool of the people, corralled by an intricate system of checks and balances so as not to belay any one man or entity with total power. Who, then, checks the government as a whole? The people do; and their mechanism is the free press. The free press is a vital tool indeed, for it is charged with the noble task of disseminating knowledge to the people. James Madison wrote:

Knowledge will forever govern ignorance. A people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prelude to a farce or a tragedy, or perhaps both.

Thus, in order to preserve the free marketplace of ideas, the grease for the democratic machine, it is paramount to uphold the uninterrupted flow of information. All doors must be open to those who gather and distribute this information, for any restriction upon their activities is a restriction upon the crucial free press. One such restriction is eating away at the Democratic institution by chilling the flow of information and undermining the role of the press in checking the government. A journalist’s right to keep the identities of his sources secret is coming into conflict with the orders by judges and grand juries. Every time a journalist is forced is reveal a confidential source, the media as a whole suffers a crippling blow. Potential whistleblowers retreat farther away from revelation, and journalists write with restrained pens. The erosion of freedoms by the government is accelerated and the people’s control is reduced. In order to uphold the freedom of press, which is provided by the first amendment, and to preserve the ideals of a democracy, journalists ought to have the right to shield confidential sources.

Almost 150 years ago, Tocqueville wrote “The more I consider the independence of the press in its principal consequences, the more am I convinced that in the modern world it is the chief and, so to speak, the constitutive element of liberty.” Tocqueville’s thinking was echoed by many political thinkers who understood the importance of truth in a Democracy. The concept was debated in U.S. v Caldwell in 1970, in front of the Supreme Court. In a dissenting opinion, Douglas articulated the concerns of those interested in protecting the free press by saying that popular government couldn’t succeed without the “steady, robust, unimpeded, and uncensored” flow of information. The importance of the media in a democracy is undoubtedly significant. A government by the people succeeds only when the people are educated in the doings of their governors, and knowledgeable of the decisions they are called upon to make. Thomas Jefferson wrote, “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate to choose the latter.” Without the free press to provide the basis for decision-making, a government for the people by the people becomes a government for the blind by the blind.

The press in a democracy must serve three functions. First it must satisfy the truth function, in which the press acts as a forum through which society can discover the kind of social truth needed to govern itself. Secondly, it must perform the watchdog function, acting as a check on the government and on other institutions, and as an outlet for those who digress or seek redress from the government or other institutions. Lastly, the press must serve the democratic dialogue function, it must provide for society’s need to build democratic institutions through interactive social communication and debate. All three functions of a free press must be satisfied in order to keep the integrity of the press intact. Forcing a journalist to reveal confidential sources, however, abridges each of the three functions, thereby severely crippling the freedom of the press and the first amendment that protects it. Assume for the purposes of argument that a scientist for a large oil company has discovered serious environmental hazards resulting from a leak. The company obviously attempts to cover the problem, and the scientist is faced with an ethical dilemma. The relevant question is, however, will the scientist sacrifice his job and maybe his lifestyle (other companies may hesitate to hire him) to uncover the environmental violation? Historical precedent and common sense point to no, he will keep quiet. Unless, of course, he can reveal the violation without revealing himself, which is precisely where the press figures into this situation. If a journalist could give a legal promise of confidentiality, the scientist would be free to enlighten the public and thereby serve the functions of the free press. If the scientist, intimidated by the notion of being identified, keeps quiet, the public will never know and just the possibility of a journalist being forced to reveal a confidential force would have abridged the free press.

The people of a democracy must have a tool in which to delve into the operations of the governors, expose corruption and flaw, and prevent the erosion of freedoms. The free press has emerged as the democratic institution that performs these jobs. John Rawls charges the press with watching the “way which the major social institutions distribute fundamental rights and duties.” The press rose to the task and has since uncovered all of the biggest government scandals in history; and there is sufficient evidence to suggest that none of them would have been discovered without a guarantee for confidentiality. Deep Throat epitomizes the ideal relationship between the press, the government, and the confidential sources. Deep Throat feared for his life, his job, and his well-being, and, therefore, revealed the details of the Watergate affair only to those journalists who swore to keep his identity a secret. The journalists used his information to expose the illegal doings of elected officials, and bring about positive democratic change. Without legal backing to the promise of anonymity to source, however, a journalist’s credibility is lost, along with his ability to check the government. Justice Douglas, dissenting in U.S. v Caldwell, writes “The press was protected so that it could bare the secrets of government and inform the people.” “[If there is no confidentiality agreement] then the reporter’s main function in American society will be to pass on to the public press releases which the various departments of government issue.” This is precisely what the founding fathers intended the first amendment to guard against; they wanted the press to be at odds with the government- checking its every move and investigating its every action. The government, though, has been wearing away at this right over the years, and, as Justice Stewart opines, it is expected and dreaded:

The intrusion of the government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is the power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. When the free press is impaired, the people are the victims, the 1st Amendment was designed to prevent this sort of tragedy.

Consider a scenario similar to the one previously described, and to the Watergate Scandal. A government accountant discovers that a prominent politician is siphoning off public funds for his own private gain. He will certainly not risk everything to expose the politician, for which he receives no material gain. In this instance, all three functions of a free press are being violated. The truth is hidden, the government is corrupt and stealing public funds, and the people never hear of the matter, and therefore cannot act on it. If the accountant is protected, he could easily blow the whistle on the politician, thereby fulfilling all three of the functions; the truth is evident, the government corruption is resolved, and the informed public is able to make decisions and discussion.

The primary argument for a reporter’s right to keep confidential sources is the ‘chill factor’ that the exposure of sources creates. The chill effect is comprised of two parts; reporters and publishers are hesitant and restrained in their reporting, and, secondly, potential sources are be deterred by the lack of a promise of confidentiality, and, therefore, the media’s ability to gather news is crippled. Confidential sources are imperative to newsgathering. Studies have shown that the percentage of stories based solely on confidential sources ranges from 15% in the Wall Street Journal to 33-50% in the Christian Science Monitor. The surprisingly high rates of dependence on shielded sources reflect a change in the focus of certain types of media. The broadcast media, for example, has dominated the breaking news sector of reporting, while newspapers have resorted to in-depth investigative reporting, a genre which hinges upon anonymous sources and off-the-record background information. Walter Cronkite, renowned reporter and advocate of an unrestrained free press writes:

“In doing my work, I (and those who assist me) depend constantly on information, ideas, leads, and opinions received in confidence. Such material is essential in digging out newsworthy facts and, equally important, in assessing the importance and analyzing the significance of public events. Without such materials, I would be able to do little more that broadcast press releases and public statements.”

Without anonymity, news dries up and sources are lost forever. The officeholder fears his superior, the beaurocrat fears his associates, the dissident fears public scorn; and all may possess valuable information to public discourse but hesitate to reveal it due to the realistic fear of backlash. The world is not full of courageous dissident sources who sacrifice everything to uncover corruption in the ranks; but rather with very real people concerned with their own well-being and reluctant to sacrifice anything. “Public figures such as government officials, political candidates, corporate officers, [and] labor leaders…who will speak in public only in carefully guarded words, achieve informative candor in private communications.” This phenomenon is essential to the media because a reporter (and therefore the free press) is no better than the source of information.

In addition to sources retreating and disappearing, the reporters themselves write with more restrained pens. If the identities of sources are fair game for the courts, self-censorship is being forced upon the media. News agencies will simply not bother to report controversially with confidential sources because the cost of defending themselves in court is too high. Smaller papers are at an even larger disadvantage, and will be even more restrained. Schlessinger candidly pins down the concept, “Reporters may be less willing to write if the only way they can protect sources is to go to prison.”

Those who deny the journalist’s right to shield confidential sources often point to the fact that journalists are citizens of the same class as everyone else and should not enjoy exclusive rights. In arguing this point one fails to realize that the reporter is doing the people a valuable service, a service which each individual cannot perform on his own. In this way he is aiding society as a whole, and he needs protection in order to do it. Walter Cronkite asks, “Why can’t the American people see that freedom of the press is not some privilege extended to a favored segment of the population but is purely and simply their own right to be told what their government and its servants are doing in their name?” Like doctors, lawyers, and members of the clergy, the ethics of the profession require that they not divulge sources, for disclosure marks a journalist as unethical. Just as a judge cannot call on the defendant’s counsel to turn over materials in a criminal trial, a judge or a grand jury should not be able to require a journalist to do so- for the free press is a fragile entity. Even just the possibility of a grand jury or judge subpoenaing information can have a chilling effect on the media as a whole.

A journalist’s right to shield confidential sources sometimes conflicts with the wishes of the judicial branch of the government. In deciding which right or law supersedes the other, one must examine the costs and benefits of the decision on a large scale. The job of the grand jury or judge to subpoena information is certainly important to justice, but the consequences are contained, and the benefits are short-term. The protection of sources, on the other hand, leads to long-term benefits and suffers only minor short-term costs. The grand jury will have to go elsewhere for the information, but the free press, the protector of liberty, remains healthy and vibrant, and the truth is evident.

Truth is the mortar for the bricks of freedom. Without truth, or with invisible truth, freedom comes toppling down on top of the people who mean to protect it. Denying the journalist’s source anonymity suppresses the truth, chills the media, deters sources, leaves the free marketplace of ideas in shambles, and therefore violates the first amendment. In order to uphold our freedom and our democracy, a journalist ought to have the right to shield confidential sources.

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