Confidentiality of Sources

by Leonard Wheeler, Sr. Staff Writer

Upon the simple examination of the subject “Confidentiality of Sources” two totally separate legal concepts, confidentiality and sources are applicable for study.  The nature of law and the quest to find the reasonableness of society with logical order of behavior creates and divides different concepts and analyzes the relationship between the individual subjects.  Confidential examines the relationship between two parties, sources examines the rights afforded and heightened by duty and confidentiality of sources examines the relationship between parties who have rights of confidentiality by relationship and duty and obligation through by position or occupation.

Before delving into the subject matter a quick glance at the doctor patient relationship is one of the simplest and purist by bond.  A physician’s oath binds them to a patient relationship obligation and the physician is dutifully bound with obligation by societies reasonable order of law.  In this case, HIPAA, known as the Health Insurance Portability and Accountability Act (U.S. Department of Health and Human Services, 2010).  Though a physician may have some personal feelings or conflict about his obligation to a patient and society he or she is bound by law to uphold a prescribed duty of the act by Congress.

This paper will look at these relationships with regard to media and communications law rather than medicine.  Communications law has failed to provide any specific law of protection and relies heavily upon stare decisis, let the case stand or in other words, case precedent.

Journalism is important for maintaining accountability of information to the public.  We value the information to keep the checks and balances of responsibility in politics, economics, and public safety.  In the past ten years, the United States has been engaged in wars, faced recession and attempted to thwart off numerous attempts of terrorism.  The nature and sensitivity of aggressive politics and imminent public danger has increased the emotion of the subjects.  There is increasing intensity of attitude polarization of the views regarding the relationships of confidentiality.   Today this is a news topic daily as the citizens of the US search to interpret the accountability of the information that the public receives through print, radio and digital media.  We now see journalism as a position of public obligation in many circumstances rather than just the reporting of stories.

The courts even see the issue polarized.  In the landmark Supreme Court case Branzburg v. Hayes, 408 U.S. 665 (1972) the vote on the opinion was 4-1-4.  Branzburg lost his case to leave a legacy of controversy for reporters who attempt to avoid testifying before the grand jury.  This was the first time the court set to determine Reporters Privilege. Essentially in the pure sense, a reporter could not seek protection by using the First Amendment.  The question of importance was whether or not a reporter had heightened protection beyond the common citizen. (FindLaw, 2010)

As law goes, everything depends on the circumstances.  Reporting a pancake breakfast does not have the public significance of reporting on a subject that would be something like terrorism, foul politics or a war.  Justice Byron White was clear to state that for the reporter subpoenaed that “the government must convincingly show a substantial relation between the information sought and as subject of overriding and compelling state interest.”  (ibid)  Since Branzburg did lose his case, the court ruled on June 29, 1972 that the First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source of evidence thereof. (Pp 679-709)

Branzburg set the stage for opposing opinion, not only was the court’s opinion split, the lower courts protected Branzburg not from mandamus, bur rather from revealing his direct source and forced him to appear and answer questions.  Branzburg brought forth the argument that I order to gather news necessary for public safety that it is often necessary to agree not to divulge the source, The court held that it did not underestimate the significance of free speech or expression to secure the country’s welfare that is “compelling” or “paramount.”

The court examined the relationship that a newsman’s privilege has to the role of the grand jury.  The grand jury has the role and functioning to determine if there is probable cause to believe that a crime has been committed.  Hannah v. Larche, 363 U.S. 420, 489 – 490 (1960) examined that the Fifth Amendment protected the “individual” in relationship to self protection whereas Branzburg was invoking a right to protect another.  Sources want not to be revealed to avoid criminal prosecution, however to protect a criminal from prosecution is against the core philosophy and function of the US constitution.  The privilege claimed was the privilege of the reporter, not the informant; each has separate rights within the scope of the Grand Jury, again due to the circumstances of relationship.

If there is any slight protection in the first Amendment for reporters it is that three criteria must be met before sources can be compelled.  1) The government must clearly show that there is probable cause specific to violation of the law; 2) The government must show the information cannot be obtained from any other source than the reporter and 3) The government must clearly demonstrate a compelling and overriding interest in the information.  So much so is the controversy that reporters have sought the privilege of using the interpretation of the courts that yield the highest protection for protection that they have turned to state law.  Shield laws are laws that protect reporters.  One of the most important information sites is which is a site that lists state by state, what protections are in place and within what cases the protection is provided.  The site exemplifies the varying opinion across the United States.  The reality of the situation is plainly quoted on the site; no federal shield law or explicit protection for journalists exists.

We will compare the protection of three states, New York, Texas and Idaho.  New York, a media and journalism center offers state protection.  Texas, obviously polar from a business perspective offers “limited” protection and Idaho offers no protection.  Beach v. Shanley, 62 NY 2d 241 – NY (1984) a subpoena requiring a television reporter to appear before a Grand Jury investigation of the unauthorized disclosure of another grand jury’s report was quashed thereby enacting the so-called “Shield Law.”  In Texas, a radio host repeating accusations about a local judge that were false, was sued by the judge and won punitive damages.  Also in Texas, in Healey Jr. v. McMeans, 884 SW 2d 772 Tex:  Court of Criminal Appeals 1994, a higher court tried forced a lower court, by using a Writ of Mandamus to compel evidence from reporters in a crime.  Though the higher court stated that the mandamus or forcing was harsh they agreed that the prosecutor had no other way to convict the criminal and that it was in the publics interest to force the writ.  As stated above, in Idaho there is no such instance for journalist to enact the Shield Law.  It is hard to pin the problem to a red or blue state issue, republican versus democrat respectively because Texas and Idaho with polarized protection limits for Shield Laws are both republican, while New York is considered a blue democratic state.

There is no doubt that universities and law schools and those who train journalists are aware of the differences in protection from state to state.  Media outlets, such as the New York Times are very aware of the situation for years and have to push for protection within their industry for the single reason of business growth.  There is always going to be a competitive market in journalism for the next hottest story and often those stories involve crime, foul politics, government leaks and other serious issues of public safety.  It is a signal to publishers and editors that they should exercise caution in how they use whatever information they obtain and extreme caution with the relationship of sources.  The courts have ruled that the relationship that a journalist has with their source(s) is in now way more important the age-old functional relationship that the grand jury has with responsibility to society.

U.S. Department of Health and Human Services, retrieved from

FindLaw for Legal Professionals, retrieved from

Beach v. Shanley retrieved from,&hl=en&as_sdt=10000000000002&as_vis=1

Bently v. Bunton 94 S.W.3d 561  – Tex Supreme Court 2002, retrieved from