Confidential sources are important to journalists and to society in that they help journalists exercise the Constitutionally protected "watchdog" function. Journalists are determined to protect their sources -- Many have gone to jail to protect sources and, in fact, promises of confidentiality are considered to be contracts that may be enforced.

According to an article by Stephen Bates, the first incident of this kind was in 1848 when reporter John Nugent of the New York Herald was jailed by Congress for refusing the reveal the source of a leak about a treaty with Mexico.

Journalists often make a claim that their communication with a source is privileged under the First Amendment. Privilege in this context is similar to the concept of attorney-client or the privileged communication between clergy and members of their churches. What it means is that reporters should not be forced to testify in a court or grand jury proceeding about their sources, nor should they have to turn over informtion that could implicate sources.

The major Supreme Court decision in this area was evenly split in the Branzburg case in 1972 (below). Some state legislatures have passed "Shield Laws," in effect giving the claim of privilege limited recognition.

Reporter Priviledge claims in the news:

Vanessa Leggett accepted the PEN/Newman's Own First Amendment Award in April, 2002 for being the longest-jailed journalist in US history. The US Supreme Court declined to hear her First Amendment appeal following incarceration in 2001 when she refused to reveal sources of information in her investigation about a Houston, Texas murder. She was released from jail after 168 days. The Reporter's Committee for Freedom of the Press kept up with the Leggett and similar cases.

Valarie Plame case -- In July, 2003, syndicated Washington DC columnist Robert Novak published information about the identy of a CIA agent in violation of a federal law. He then refused to reveal the source of the leak that identified Valarie Plame. Columnist Geneva Overholser writes in the New York Times: "Principles, alas, require defending even when they arise in an unappealing guise." Overholser says that Novak "apparently turned a time-honored use of confidentiality Ñ protecting a whistleblower from government retribution Ñ on its head, delivering government retribution to the whistleblower instead. Worse, he enabled his sources to illegally divulge intelligence information." (Note: you may need a New York Times free account to read this editorial).

Meanwhile, two other reporters were subpoenaed in the Plame leak investigation.

A Providence, RI, TV reporter was found in contempt in March, 2004, for refusing to disclose the name of the person who gave WJAR-TV a videotape of an FBI sting operation, according to the reporters committee for freedom of the press.

A Minnesota reporter in April, 2004 refused to comply with a Minnesota state Supreme Court order to reveal the names of anonymous sources in an article he wrote in 1997 for the Maplewood Review. The story was about the North St. Paul Maplewood school district's decision to not renew the contract of a football coach at Tartan High School. The coach later sued the district and four school officials for breach of contract and defamation, and a trial is slated to begin July 19. Reporter Wally Wakefield is not named in the lawsuit. Source: Associated Press, via Duluth (Minn.) News Tribune" More information

Olympics case followup -- In June 2004 a judge in George ruled that the Atlanta Journal and Constitution newspaper would not be asked to disclose its confidential sources for articles about Richard Jewell, the security guard falsely accused by the FBI of setting off bombs at the 1996 Olympics in Atlanta.

Historical cases:

** Branzburg v Hayes, 1972 -- Marijuana and black panther cases where reporters refused to reveal sources. Court was evenly split 4-4 with one vote saying reporter privilege was appropriate in some circumstances.

Silkwood v. Kerr McGee, 1984 -- In preliminary motions, courts denied Kerr McGee's attempt to get documentary filmmakers to reveal sources. The backstory to the Silkwood case, however, is very interesting. Karen Silkwood was a worker at a defense plant processing plutonium for atomic bombs. She was on her way to a meeting with a New York Times reporter to discuss security violations a the plant when the car she was driving was forced off the road. A film made about the incident used other confidential sources. When the plutonium plant owners wanted those sources revealed, the courts refused.

Shoen v. Shoen, 1993 -- Book author may invoke reporter privilege when subpoenaed for information when all other avenues to the information have not been exhausted.

In RE Farber, 1978 -- New York Times reporter Myron Farber refused to comply with a court subpeona to turn over notes from an investigation into an ongoing murder case.

** Cohen v Cowles Media, 1991 -- Republican public relations guy Dan Cohen sued after being promised confidentiality by a Minneapolis Star Tribune reporter. Justice White said "The First Amendment does not confer on the press a constitutional right to disregard promises that could otherwise be enforced under state law..."

* Zurcher v. Stanford Dailiy, 1976 -- newsroom serarches were not illegal according to the courts; In 1980, Congress passed the Privacy Protection Act and overruled the Zurcher decision. Under the law, subpoenaes are preferred to ex parte proceedings such as search warrant requests, which only be issued:

1. when the person holding the information is suspected of a crime and
2. there is reason to believe the materials must be seized immediately to prevent death or injury and
3. there is reason to believe that giving notice would result in materials being changed or hidden or destroyed and
4. the materials were not produced as a result of a court order.

Bridges v. California, 1941 -- As a point of historical interest, the Bridges case involved "Indirect contempt by publication" which was struck down except in cases of clear and present danger to administration of justice. It marked the end of the judiciary's attempts to directly control public opinion about the courts through its ability to hold journalists in contempt.