Confidential Sources: Promises, Promises

By Metcalf, Slade | Folio: the Magazine for Magazine Management, December 1, 1990 | Go to article overview

Confidential Sources: Promises, Promises


Metcalf, Slade, Folio: the Magazine for Magazine Management


Confidential sources: Promises, promises

Have you--a publisher--ever been involved in an argument with a writer over whether to reveal the identity of a confidential source? Until recently, such a dispute would have been unheard of Journalists have long held to the fundamental belief that the relationship between a journalist and a confidential source is sacrosanct. Writers, reporters and editors have pledged on their honor never to reveal this confidential information--even upon pain of imprisonment. Journalists such as Myron Farber, Bill Farr and Peter Bridge have refused to do so, even after being found in contempt of court and threatened with or given jail time.

Recently, however, two publishers did choose to reveal a confidential source over the objections of their reporters. This raises an important question: If a publisher reneges on a reporter's promise of confidentiality, will the publisher be at risk, even if the information revealed is true and does not invade anyone's privacy?

The case involved the public disclosure of a confidential source by two Minnesota newspapers. In late October 1982, a Republican campaigner named Dan Cohen was active in the gubernatorial campaign of Wheelock Whitney. Cohen separately approached two newspaper reporters, one from the St. Paul Pioneer Press Dispatch and the other from the Minnesota Star Tribune. He told each reporter that he had documents relating to the gubernatorial campaign, but that he would supply the documents only on the condition that the reporters treat him as a confidential source and not use his name in connection with the use or publication of the documents. He also insisted that they not ask him the identity of the person from whom he obtained the documents.

Both reporters expressly agreed to keep Cohen's identity confidential, and received two documents relating to certain charges that had been filed against the candidate for Lieutenant Governor from the Democratic-Farmer-Labor Party.

When the source is news

Thereafter, editors at both the Star Tribune and the Pioneer Press Dispatch decided to abrogate the promise made by their reporters to keep Cohen's identity secret, and published articles disclosing that the documents had been provided by Cohen. The editors, despite strong objections from both reporters and other editorial staffers at the papers, decided that the identification of Cohen as the source was newsworthy, and that to attribute the story to an anonymous source would be misleading and cast suspicion on others. On the same day that the two newspaper stories ran, Cohen was fired by his employer.

Cohen then sued both newspaper publishers, not for libel--since the information was true; and not for invasion of privacy because Minnesota does not recognize such a claim (and Cohen's identity was indeed newsworthy) -- but for fraudulent misrepresentation and breach of contract.

The case went to trial, the jury found the newspapers liable on both claims, and awarded Cohen $200,000 in compensatory damages jointly against both publishers and $250,000 in punitive damages against each defendant. The intermediate Court of Appeals upheld the award of compensatory damages on the breach of contract claim.

However, the Minnesota Supreme Court reversed the decision and dismissed the case. That state Supreme Court found that a journalist's promise of confidentiality is a moral commitment, but not a legal commitment. The Court refused to find that Cohen's request for confidentiality and the reporters' consent to that request amounted to a binding legal contract. In essence, the Court found that the impact of the First Amendment upon the relationship of a journalist and a source cannot be so formalized as to create a legally enforceable relationship.

Questions still unanswered

Needless to say, the facts involved in this case engendered a fire storm of discussion on many fronts. …

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