In response, Dr. Lee filed suit against the government, claiming that the government violated his right to privacy by disclosing his identity to the media absent consent. Dr. Lee alleged that the government's conduct caused him to suffer financial loss, injury to reputation, and physical and emotional distress.

Dr. Lee subsequently issued subpoenas for the depositions of five journalists who authored articles containing personal information unlawfully disclosed by the government. Asserting the reporter's privilege, the reporters claimed they had the right to protect the identity of their sources. The court, however, disagreed and found that Dr. Lee's need for the information outweighed the reporters' First Amendment right. The court accordingly ordered disclosure of the sources' identities.

This case begs two fundamental questions: (1) Under what circumstances can a reporter legally withhold the identity of a source? And, (2) Are reporters under an ethical obligation to explain to their sources that they may not be able to protect the information or their identity in certain circumstances?

Reporters can generally safeguard their sources' anonymity without fear of compelled disclosure. However, once litigation is instituted, all the rules change. Although contacting a lawyer should be your first step when faced with a subpoena or other discovery request demanding the identity of your source, here's the information you need to know to not only protect your confidential news sources, but also your personal reputation.

Competing Interests

From a reporter's perspective, confidential sources provide access to crucial information necessary for the exposure of illegalities and other corruption in society. One need only glance back to the Watergate scandal to appreciate these benefits. Protection against disclosure helps assure that knowledgeable yet reluctant sources of sensitive information will come forward and provide information to reporters without fear of retaliation or embarrassment.

From a litigant's perspective, a source's identity can be a critical element in libel lawsuits alleging false information. For public figures, this information is even more critical because of their heightened burden to not only prove falsity, but also malice. Revelation of a source's identity also plays a role in criminal cases by allowing defendants to effectively cross-examine their accusers and/or by aiding prosecutors to establish the elements of their case.

The Foundation of Reporter's Privilege

The U.S. Supreme Court addressed the issue of a reporter's "privilege" in 1972. In Branzburg v. Hayes, the Court held that the First Amendment did not give journalists the right to refuse to testify in a grand jury proceeding. However, the Court did acknowledge that newsgathering is not without protection and left to the lower courts the task of deciding when newsgathering interests could reasonably support the reporter's claim of privilege.

Although Congress has not enacted a law recognizing the reporter's privilege to date, many state and federal courts have recognized the existence of a qualified privilege in both the civil and criminal context. In fact, some states have gone so far as to enact "Shield Laws," recognizing the important protection required by reporters. And, while some states protect only the "source," others afford protection to both the source and the unpublished information.

The Balancing "Test"

Because the privilege is not absolute in most cases, various competing interests will be balanced before a court orders disclosure. This balance often includes a showing that: (1) the information is unavailable and cannot be obtained elsewhere; (2) the information is not cumulative and is "of central importance" to the case; and (3) the need for the information weighs in favor of disclosure.

Be Sure to Assert It And Don't Waive It!

When faced with a subpoena compelling disclosure, a reporter cannot simply turn a blind eye or refuse to cooperate. A few procedures must be followed to validly assert the privilege. They include (1) responding to the request and invoking the privilege; (2) showing that the information was revealed in confidence; and (3) showing that the asserted confidentiality is essential to the satisfactory maintenance of the relationship between the parties.

In addition, it is crucial that a reporter not inadvertently waive the privilege. Waiver occurs when the reporter voluntarily discloses the information or acts in a way contrary to the purposes of the privilege. Examples of waivers most frequently occur when reporters commence lawsuits alleging damage to their ability to use sources, or when reporters unwittingly use third parties as vehicles of communication with their sources.

Don't Make Promises You Can't (or Won't) Keep

According to the Journalism Statement of Principles: "Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly." This principle reflects the ethical or moral obligation reporters often feel to protect certain information or a source's identity irrespective of the law. However, as we saw in Dr. Lee's case, pledges of confidentiality, unfortunately, cannot always be legally honored.

Given the highly sensitive nature of the information, reporters have an ethical obligation to explain the nature and consequences of the privilege to a source at the outset. In doing so, reporters are encouraged and well-advised to make any promises of confidentiality sparingly because a reporter's interest in protecting the identity of the source may, in fact, yield to the public interest in disclosure.

Remember, it's your reputation that's on the line. Knowing the parameters and pitfalls of the privilege can help you make the right call in any given situation.

This article is written to provide readers with a very general overview of the reporter's privilege. The information contained herein should not be construed as providing legal advice and should not be relied on for that purpose. If you have specific legal questions, the authors suggest seeking the advice of a qualified attorney.

About the Authors

Fernando M. Pinguelo and Sona I. Patel are entertainment attorneys who are collectively licensed to practice law in New York, New Jersey and Washington, D.C. Their focus has been predominately in the broadcasting and music sectors, building off their ties to Emmy Award-winning talent and up-and-coming musicians. They also serve as regular article contributors for TVSpy, Next Generation TV, and Shop Talk. Fernando and Sona welcome questions and/or feedback on any related issues and can be reached either by phone, (908) 722-0700, or via email, fmp@nmmlaw.com ; sipatel@nmmlaw.com
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