National Security Information Flow: From Source to Reporter's Privilege

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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. …