One of the traits that makes American society among the greatest in the world is its freedom of speech and of the press. The free flow of information has long been recognized as one of the hallmarks of a free society, and is essential to the proper functioning of a free press. Journalists' ability to keep sources of information private and confidential helps to obtain this free flow of information. Without this confidentiality, sources of information may decrease and the press would no longer be able to provide the same quality and quantity of information to the public. Because of the recognized importance of the free flow of information to the press, the privilege of confidentiality will only be overcome where a demonstrated, specific need for evidence presents a paramount interest to which the privilege must yield.
The protection of confidential information, such as that obtained by confidential informants, is protected differently depending on whether the confidential information is pursued under state or federal law. Each system has different requirements for obtaining confidential information, and care should be taken when dealing with the disclosure of such information. Newspapers or reporters that disclose certain confidential information may find themselves facing legal action. In one such instance, a newspaper was found liable under principles of contract law for releasing the name of a confidential informant.
Special note on confidentiality: Confidentiality is a privilege held by the journalist. The journalist cannot divulge confidential information without either permission from the source of the information or from an order from a court. If information is published or otherwise disclosed to the public (such as by word of mouth), the information looses its confidential nature and the journalist may be compelled to testify about what was published. However, unpublished information, including that part of a journalist's notes that contains information that was not included in a published story, may be protected.
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Pennsylvania Shield Law (42 Pa.C.S.A. §5942)
When dealing with lawsuits that arise out of Pennsylvania law (lawsuits based upon violations of Pennsylvania law, including libel lawsuits taking place in federal courts), reporters are protected by what is often referred to as the Pennsylvania Shield Law. This law states:
No person engaged in, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit. Note: This statute also applies to radio and television stations as long as they maintain and keep recordings or transcripts of the actual broadcast or telecast available for inspection.
This law provides journalists with an absolute privilege against the compelled disclosure of confidential sources of information, be it from law enforcement agencies or private citizens. The Shield Law has been interpreted by the courts to include not only the names of reporters' informants, but also provides protection to documents, unpublished materials, inanimate objects, and all sources of information obtained by reporters. Therefore, in a case dealing with a violation of Pennsylvania law, reporters cannot be required to produce the names or identities of their informants, documents obtained by their informants (such as invoices or letters), or other sources of information, even if they are subpoenaed to do so.
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Exceptions to the Shield Law
As broad as it is, a number of exceptions and limitations do apply to the Shield Law. Only confidential information is protected. Once the information is no longer confidential, such as once it is published, the protection ceases as to that information. Additionally, if the reporter reveals the confidential information to other people, reporters and non-reporters alike (with the possible exception of an editor or other newspaper employees that are working on that specific story), the information looses its confidential status. However, any related information that is unpublished or undisclosed to others remains protected by the Shield Law.
Libel cases are another major exception to the Shield Law. In a libel lawsuit in Pennsylvania (and also in federal courts when a Pennsylvania libel suit is being decided), unpublished documentary information (including a reporter's notes) is discoverable by a plaintiff in a libel action to the extent that the documentary evidence does not reveal (or reasonably lead to the discovery of) the identity of a personal source of information or may be redacted to eliminate the revelation of a personal source of information. It does not matter whether the newspaper or reporter is a party to the lawsuit. They can still be compelled to disclose this information in a lawsuit between two other unrelated parties.
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Federal law concerning confidential sources stems mostly from the First Amendment. It may be noted that First Amendment protections also apply to state law, although these First Amendment arguments are separate from any Shield Law arguments, and should not be confused with the state-enacted Shield Law. These laws do not apply in federal courts when federal law is used, but if a federal court hears a dispute concerning state law, such as a libel case, the applicable state laws will apply.
The First Amendment applies to the states through the Fourteenth Amendment. Therefore, the following First Amendment arguments may be made in state courts in addition to state shield laws. However, state shield laws often provide more protection for journalists and are used instead of First Amendment arguments. This is because journalists do not have an absolute privilege under the First Amendment to refuse to appear and testify about their confidential sources. When dealing with federal law, journalists have only a limited protection from the required disclosure of their confidential sources.
While federal courts recognize that members of the press enjoy a qualified First Amendment privilege that limits disclosure of confidential sources, resource materials, and unpublished material, these items may be obtained in Third Circuit courts (federal courts in Pennsylvania) if all three elements of the so called "Riley test" are met. This test strikes a balance between the confidential privilege of the journalist and the interest of the litigant. For litigants to obtain the confidential information from journalists, they must prove that:
attempts to obtain the information from other sources have been exhausted (such as there are no other witnesses or they have pleaded the Fifth Amendment as a defense against testifying);
the journalist is the only source of the information sought; and
the information sought is necessary and crucial to the litigants claims (the claims, either civil or criminal, cannot be proven without the information sought from the confidential source)
Sometimes a judge may require that the confidential information be disclosed at an in camera proceeding. This means that the judge will examine the confidential information in private and decide whether the information is necessary and crucial to the litigants' claims. The information must be turned over to the judge in this situation. If the judge finds that the information is not crucial, the confidentiality of the information will be maintained and will not be disclosed to other parties. If the litigant fails to meet all three of the above elements, the journalist will not be required to disclose the requested confidential information. If the court finds that the litigant meets the requirements of the test, then the journalist will be required to disclose the confidential sources or risk being held in contempt of court.
Special Note: If the source testifies about its communications with the journalist, the communication looses its confidential label and the journalist's testimony may be compelled. The reporter may also loose his confidentiality privilege if he shares this information with others, or if the information is disclosed to him in the presence of others. When receiving information from a confidential source, keep the communications one-on-one. Otherwise, the privilege of confidentiality may be forfeited.
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Revealing Confidential Sources
The United States Supreme Court has held that the First Amendment does not protect journalists or publishers from lawsuits for breach of a promise of confidentiality. The most influential of these cases is Cohen v. Cowles Media Co., 501 U.S. 663, 18 Media L. Rep. 2273 Jun 24, 1991, which involved a confidential source whose identity was printed as part of a news story after he was promised confidentiality in exchange for information. The Supreme Court stated that the First Amendment did not prevent an action for breach of contract and that any inhibition that the holding would have on truthful reporting was no more than an incidental consequence of applying generally applicable law. The First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law.
Note: This case dealt with a voluntary, non-subpoenaed release of information by a newspaper. A reporter would not have to reveal confidential sources if subpoenaed because such information is protected under Pennsylvania's "Shield Law."
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See Also: Subpoenas