Calculating the public interest in protecting journalists' confidential sources

Columbia Law Review

Volumn 108, Issue 8, 2008, Pages 1949-1989

  Abramowicz, David ^a  

^a NONE

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EID: 58649096601     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (356)

1. See Free Flow of Information Act of 2007, H.R. 2102, 110th Cong. (2007);
2. Free Flow of Information Act of 2007, S. 2035, 110th Cong. (2007). The House approved its bill by an overwhelming margin, 398 to 21.
3. Elizabeth Williamson, House Passes Bill to Protect Confidentiality of Reporters' Sources, Wash. Post, Oct. 17, 2007, at A3. The Senate bill was approved by the Senate Judiciary Committee, but has yet to be voted on by the full Senate.
4. The bills differ in when, exactly, they would require balancing. The House bill proposes a test in which the privilege can be overcome when certain circumstances, such as a terrorist threat, are present, see H.R. 2102 § 2(a)(3), and "the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information," id. § 2(a)(4). The Senate version offers journalists narrower protections. In nonenumerated situations, it first requires courts to apply a three-pronged test requiring proof that the information sought from the reporter is material, relevant, and unavailable from outside sources.
5. See S. 2035 § 2(a)(1)-(2). This Note discusses that diree-prong test infra Part I.B. But the Senate proposal adds one more requirement to overcome the privilege: a judge's determination "that nondisclosure of the information would be contrary to the public interest, taking into account bodi the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information." S. 2035 § 2(a)(3).
6. See infra Part I.A.4 (describing development of federal common law qualified privilege).
7. See Daniel Joyce, The Judith Miller Case and the Relationship Between Reporter and Source: Competing Visions of the Media's Role and Function, 17 Fordham Intell. Prop. Media & Ent L.J. 555, 588 (2007) ("Ultimately we are caught between a vision of the media as watchdog and our suspicion that in certain cases the dog has jumped the fence and may now need watching itself.").
8. See infra note 115 and accompanying text (discussing Jayson Blair).
9. See infra notes 117-119 and accompanying text (describing Bill Burkett's role in discredited CBS News report).
10. See infra notes 91-95 (discussing investigation into Plame leak).
11. See infra Part II.A.2 (showing how those in power may seek promises of confidentiality in order to evade responsibility).
12. See Joe Strupp, Losing Confidence, Editor & Publisher, July 1, 2005, at 32, 34, 36 ("Nearly all of the nation's major newspapers and news services have either rewritten their policies on sourcing, or at least reminded journalists of their existence . . . .").
13. See infra Part H.B.I.
14. See infra Part H.B.2.
15. See infra Part H.B.3.
16. 408 U.S. 665 (1972).
17. 8 John Henry Wigmore, Evidence § 2192 (John T. McNaughton rev. ed. 1961);
18. see also United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting Wigmore);
19. Jaime M. Porter, Note, Not Just "Every Man": Revisiting the Journalist's Privilege Against Compelled Disclosure of Confidential Sources, 82 Ind. LJ. 549, 549-50 (2007) (discussing tension between journalist's privilege and "every man's evidence" principle).
20. See Free Flow of Information Act of 2007: Hearing on H.R. 2102 Before the H. Comm. on the Judiciary, 110th Cong. 54 (2007) [hereinafter Hearing] (prepared statement of Randall D. Eliason) ("All evidentiary privileges shield relevant evidence from consideration by a jury or other fact-finder . . . .");
21. Wigmore, supra note 14, § 2285 (describing prerequisites for privilege protections).
22. In the long term, however, it may serve law enforcement interests by helping journalists uncover misdeeds that otherwise would not have come to light See infra notes 27-31 and accompanying text
23. See Branzburg, 408 U.S. at 695 (noting "public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future").
24. See Hearing, supra note 15, at 54 (prepared statement of Randall D. Eliason) ("The exclusion of relevant evidence may directly impact the rights of criminal defendants or civil litigants, or may prevent prosecutors from bringing criminals to justice.").
25. This concern underlies President Bush's vow to veto the proposed federal shield statutes. See Williamson, supra note 1 (quoting Bush Administration statement warning at proposed shield statute "could severely frustrate - and in some cases completely eviscerate - the federal government's ability to investigate acts of terrorism and other threats to national security");
26. see also Michael D. Saperstein, Jr., Comment, Federal Shield Law: Protecting Free Speech or Endangering the Nation?, 14 CommLaw Conspectus 543, 565-68 (2006) (discussing national security concerns related to proposed journalist's privilege legislation). Some proponents of the privilege argue that confidential sources who reveal information about the government's activities in the name of national security merit more protection, not less.
27. See Walter Pincus, Anonymous Sources: Their Use in a Time of Prosecutorial Interest, Nieman Rep., Summer 2005, at 28, 28 ("Protecting confidential sources, who provide mé withi material for many of the intelligence stories I write, is a key factor that enables me to write the stories I do about national security.").
28. See Hearing, supra note 15, app. at 100 (letter from Am. Beverage Ass'n et al.) (expressing concern about effect proposed shield legislation "could have on the ability of businesses and individuals to protect information that rightly should be kept confidential").
29. See Susan M. Gilles, The Image of "Good Journalism" in Privilege, Tort Law, and Constitutional Law, 32 Ohio N.U. L. Rev. 485, 489 (2006) ("By its very nature, indeed by its very name, 'privilege' demands that we accord different and special treatment to some versus others.").
30. Branzburg, 408 U.S. at 704.
31. See generally Clay Calvert, And You Call Yourself a Journalist?: Wrestling with a Definition of "Journalist" in the Law, 103 Dick. L. Rev. 411 (1998) (discussing difficulty of distinguishing journalists for legal purposes).
32. Id. at 411.
33. See Linda L. Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Hous. L. Rev. 1371, 1373 (2003) ("When anyone can be a journalist, it may be impossible to decide who should be protected by the 'journalist's' privilege . . . .");
34. Randall D. Eliason, Leakers, Bloggers, and Fourth Estate Inmates: The Misguided Pursuit of a Reporter's Privilege, 24 Cardozo Arts & Ent. L.J. 385, 446 (2006) ("As the media and journalism in the modern information age continue to expand and redefine themselves, the notion of a reporter's privilege becomes increasingly unworkable and impractical.");
35. Joyce, supra note 4, at 571 (calling definitional problem "an issue with particular poignancy in the present era with the de-professionalization of journalism, the rise of the celebrity blogger and the turn to citizen media").
36. See Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and Information, 20 Yale L. & Pol'y Rev. 97, 101 (2002) ("Most troubling for journalists and others who want to preserve a free press-including this author - is that so many divergent groups of persons could be called journalists that the protection of the privilege would be dissolved.").
37. Anthiony Lewis, A Public Lecture by Anthiony Lewis, The First Amendment in Perspective, 29 U. Haw. L. Rev. 13, 17 (2006) [hereinafter Lewis, Public Lecture].
38. See, e.g., Reply Brief for Petitioner, Paul M. Branzburg at 5, Branzburg v. Hayes, 408 U.S. 665 (1972) (No. 70-85) [hereinafter Reply Brief] ("[M]any stories have reached the press solely due to the fact that anonymity has been promised the source by the newsgadierer.").
39. See Geoffrey R. Stone, Why We Need a Federal Reporter's Privilege, 34 Hofstra L. Rev. 39, 42 (2005) (listing examples in which whisdeblowers provide valuable information, and arguing that "[fjhere is no sensible reason for the federal system not to recognize a journalist-source privilege to deal with the situations like the whisdeblower examples").
40. See Reply Brief, supra note 28, at 15 ("By compelling the appearance and testimony of one reporter, the Petitioner, the State will have crippled the capacity of the entire press to report on news and events of interest and importance to the public").
41. The argument that potential sources would withhold information in the absence of a privilege has been the subject of empirical research. Vince Blasi published the best-known study shortly before Branzburg was decided. See Vince Blasi, The Newsman's Privilege: An Empirical Study, 70 Mich. L. Rev. 229 (1971).
42. From interviews with journalists, Blasi concluded that "the adverse impact of the subpoena threat has been primarily in 'poisoning the atmosphere' so as to make insightful, interpretive reporting more difficult rather than in causing sources to 'dry up' completely." Id. at 284;
43. see also John E. Osborn, The Reporter's Confidentiality Privilege: Updating the Empirical Evidence After a Decade of Subpoenas, 17 Colum. Hum. Rts. L. Rev. 57, 77 (1985) (noting, from survey of Pulitzer Prize-winning journalists, that since Branzburg, "sources continue to divulge information on a confidential basis only because the reporter has impliedly or explicidy demonstrated a willingness to face incarceration rather than violate a source's trust").
44. But see Lillian R. BeVier, The Journalist's Privilege - A Skeptic's View, 32 Ohio N.U. L. Rev. 467, 475-78 (2006) (calling empirical studies into question).
45. Alexander, supra note 26, at 102 ("[T] he proximity of reporters to news events and the professional observation, recording, and recall skills they exercise daily as news gatherers have made them . . . easy subpoena targets for their eyewitness testimony, notes, film, documents, and other information.").
46. See Reply Brief, supra note 28, at 37 ("The state, rather than using its own vast resources to investigate alleged criminal activity, is trying to use news reporting bodies as its investigative arms.").
47. See Jane E. Kirtley, Keeping the Government Out of the Newsroom: A First Amendment Imperative?, Hum. Rts., Fall 2001, at 7, 8 ("Mostjournalists would say that the most significant threats to their independence occur when the government attempts to use them as its investigators, eroding a line that should be fixed and immutable.").
48. Branzburg v. Hayes, 408 U.S. 665, 667-71 (1972).
49. Id. at 672.
50. Id.
51. Id. at 673.
52. Id. at 675.
53. Id. at 679-81.
54. See id. at 667 ("The issue in these cases is whethier requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment We hold that it does not").
55. See id. at 681 ("[T]hese cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold.").
56. See id. at 667.
57. Id. at 690-91.
58. See id. at 706.
59. Before Branzburg, seventeen states had a statutory journalist's privilege; today, thirty-three states and the District of Columbia have one. For a compilation of shield statutes, see Henry Cohen, Cong. Research Serv., Journalists' Privilege to Withhold Information in Judicial and Other Proceedings: State Shield Statutes 3-47 (2007) (listing statutes in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, and Washington). In an additional sixteen states, courts have recognized a constitutional or common law-based privilege.
60. For a jurisdiction-byjurisdiction review of journalist's privilege laws, see generally Jeremy Feigelson, James C. Goodale & John S. Kiernan, Practising Law Inst, Reporter's Privilege, in Communications Law 2007, at 9 (2007). In total, then, journalists enjoy some form of privilege in forty-nine states and the District of Columbia. Moreover, the only state not included on that list, Wyoming, has not rejected such a privilege. Rather, Wyoming's courts have not had a chance to rule on the issue. Id. at 65.
61. Branzburg, 408 U.S. at 665 (listing Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist as joining Justice White's opinion).
62. Id. at 709-10 (Powell, J., concurring).
63. Time has not clarified the confusion. See Adam Liptak, A Justice's Scribbles on Journalists' Rights, N.Y. Times, Oct 7, 2007, § 4, at 4 (describing continuing efforts to decipher Powell's concurrence). One commentator presents Powell's concurrence as Exhibit A in her argument that concurring opinions often lead to confusion.
64. See Sonja R. West, Concurring in Part & Concurring in the Confusion, 104 Mich. L. Rev. 1951, 1951-53 (2006).
65. Branzburg, 408 U.S. at 710 (Powell, J., concurring). This approach bore so little resemblance to the majority opinion that Justice Stewart, who dissented in Branzburg, later characterized the ruling as coming by "a vote of four and a half to four and a half." Potter Stewart, "Or of the Press," 26 Hastings L.J. 631, 635 (1975).
66. Branzburg, 408 U.S. at 710 (Powell, J., concurring).
67. See Adam Liptak, The Hidden Federal Shield Law: On the Justice Department's Regulations Governing Subpoenas to the Press, 1999 Ann. Surv. Am. L. 227, 232 [hereinafter Liptak, Hidden Federal Shield] (describing history of Justice Department guidelines).
68. Policy with Regard to the Issuance of Subpoenas to Members of the News Media, Subpoenas for Telephone Toll Records of Members of the News Media, and the Interrogation, Indictment, or Arrest of, Members of the News Media, 28 C.F.R. § 50.10(a) (2007).
69. For a discussion and analysis of the regulations, see generally Liptak, Hidden Federal Shield, supra note 52.
70. 28 C.F.R. § 50.10(n).
71. See Liptak, Hidden Federal Shield, supra note 52, at 227 ("[The regulations] have remained stable and consistendy enforced even as the journalists' privilege has taken a beating in the federal courts . . . .").
72. Fed. R. Evid. 501.
73. See Jaffee v. Redmond, 518 U.S. 1, 8 (1996) ("Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting 'common law principles . . . in the light of reason and experience.'").
74. See infra note 70 and accompanying text.
75. Branzburg v. Hayes, 408 U.S. 665, 710 (1972) (Powell, J., concurring);
76. see also supra notes 47-51 and accompanying text (discussing Powell's concurrence).
77. Branzburg, 408 U.S. at 685 ("[T] he great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.").
78. Id. at 686-88.
79. See id. at 687 ("The Fifth Amendment provides that '[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.'" (quoting U.S. Const amend. V)).
80. See id. at 707-08 ("Official harassment of the press undertaken not for the purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification.").
81. See Eliason, supra note 25, at 395-97 (discussing circuit court approaches to journalist's privilege in grand jury, criminal, and civil contexts). Eliason notes, however, that one district court ruling in the Third Circuit recognized a reporter's privilege not to testify before a grand jury.
82. See id. at 396 n.53 (discussing In re Williams, 766 F. Supp. 358 (W.D. Pa. 1991)).
83. See, e.g., United States v. Sanders, 211 F.3d 711, 721 (2d Qr. 2000) (rejecting privilege where issuance of subpoena "was a legitimate exercise of 'the broad discretion' entrusted to the prosecutor" (citation omitted));
84. Scarce v. United States (In re Grand Jury Proceedings), 5 F.3d 397, 402 (9th Cir. 1993) (distinguishing prior case in which court balanced competing interests because "that case - unlike Branzburg or the present case - did not involve testimony before a grand jury");
85. Storer Commc'ns Inc. v. Giovan (In re Grand Jury Proceedings), 810 F.2d 580, 585-86 (6th Cir. 1987) (rejecting privilege, but noting that "exclusion" of testimony may apply to "introduction of evidence which is unreliable or calculated to mislead or prejudice");
86. In re Grand Jury Matter, Gronowicz, 764 F.2d 983, 990 n.2 (3d Cir. 1985) (Garth, J., concurring) ("Branzburg, it must be pointed out, did not hold that a First Amendment privilege was available in a grand jury context even where the party subpoenaed was not the target of the investigation.");
87. In re Grand Jury 95-1, 59 F. Supp. 2d 1, 10 (D.D.C 1996) ("Albeit in dicta, the Supreme Court made clear that no such privilege is available in grand jury investigations unless the grand jury has acted in bad faith.").
88. See Branzburg, 408 U.S. at 691-92 ("The [First] Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons.").
89. U.S. Const. amend. VI;
90. see also United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (noting "paramount importance" of defendant's Sixth Amendment right relative to First Amendment reporter's privilege).
91. See, e.g., United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998) ("Although some courts have taken from Justice Powell's concurrence a mandate to construct a broad, qualified newsreporters' privilege in criminal cases, we decline to do so." (internal citations omitted));
92. In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) ("[A]bsent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution.").
93. See, e.g., United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988) (balancing competing interests before ruling that specific facts merit requiring news organization to turn over material for in camera inspection);
94. United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (recognizing journalist's privilege not to testify in criminal trial absent showing that reporter's information "was unavailable from other sources or necessary to the proper presentation of the case");
95. United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (recognizing privilege where defendant "has completely failed to make the clear and specific showing that [reporter's information was] necessary or critical to the maintenance of his defense");
96. United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) ("A defendant's Sixth Amendment and due process rights certainly are not irrelevant when a journalists' privilege is asserted. But rather than affecting the existence of the qualified privilege, we think that these rights are important factors that must be considered in deciding whether . . . the privilege must yield . . . .");
97. see also Eliason, supra note 25, at 395-96 & nn.48-49 (discussing circuit approaches to journalist's privilege in civil and criminal cases). Within those circuits that recognize a qualified reporter's privilege in criminal cases, the seriousness of the crime at issue appears to play no role in whether the courts ultimately grant the privilege. See Karl H. Schmid, Journalist's Privilege in Criminal Proceedings: An Analysis of United States Courts of Appeals' Decisions from 1973 to 1999, 39 Am. Crim. L. Rev. 1441, 1497 (2002).
98. The Sixth and Seventh Circuits, where dicta in two holdings indicate that the privilege may be unavailable in all contexts, appear to be exceptions. The Sixth Circuit has argued that other circuits, in recognizing a qualified journalist's privilege, misinterpret Powell's Branzburg concurrence. See Storer Commc'ns, 810 F.2d at 584-86 ("Justice Powell's concurring opinion is entirely consistent with the majority opinion, and neither limits nor expands upon its holding . . . ."). In the Seventh Circuit, Judge Posner has argued that subpoenas issued to journalists deserve no more scrutiny than subpoenas issued to anyone else. See McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003) ("[R]ather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas." (citing Fed. R. Crim. P. 17(c))); see also Eliason, supra note 25, at 396 Sc n.52 (discussing journalist's privilege cases in Sixth and Seventhi Circuits).
99. See, e.g., U.S. Commodity Futures Trading Comm'n v. McGraw-Hill Cos., 390 F. Supp. 2d 27, 33 (D.C Cir. 2005) ("[I]n civil cases, the privilege typically prevails because any interest in overcoming the privilege is by definition a private rather than a public interest");
100. Smith, 135 F.3d at 972 ("Because the public has much less of an interest in the outcome of civil litigation, in civil cases . . . the interests of the press may weigh far more heavily in favor of some sort of privilege.").
101. But see Burke, 700 F.2d at 77 ("We see no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence.").
102. The Burke language shows that not all courts give less weight to the public interest in compelling disclosure in civil proceedings. After all, some civil cases, such as those brought by the government seek to promote the public interest No court, however, grants more weight to the public interest in compelling disclosure in civil proceedings. On average, then, the privilege is harder to overcome in civil cases.
103. See Branzburg v. Hayes, 408 U.S. 665, 725-52 (1972) (Stewart, J., dissenting).
104. The three-part test required the government to (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.
105. Id. at 743 (internal footnotes omitted). Justice Stewart foreshadowed this analytical framework in deciding a reporter's privilege case fourteen years earlier.
106. See Garland v. Torre, 259 F.2d 545, 551 (2d Cir. 1958) (finding no privilege because information was of "obvious materiality and relevance" and because "reasonable efforts" to learn the information through alternative means had failed).
107. For cases, presented in numerical order by circuit, in which courts embraced the relevance, necessity, and exhaustion requirements, see, e.g., Zerilli v. Smith, 656 F.2d 705, 711-14 (D.C. Cir. 1981);
108. LaRouche Campaign, 841 F.2d at 1179;
109. In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982);
110. Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979);
111. LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986);
112. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980);
113. Gulliver's Periodicals, Ltd. v. Charles Levy Circulating Co., 455 F. Supp. 1197, 1202-03 (N.D. Ill. 1978);
114. Shoen v. Shoen (Shoen II), 48 F.3d 412, 416 (9th Cir. 1995);
115. Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977);
116. Caporale, 806 F.2d at 1504;
117. see also 23 Charles Alan Wright & Kenneth W. Graham, Federal Practice & Procedure, Evidence, § 5426, at 789 (1980) (noting Stewart's approach "has gained the support of newsmen, legal writers, statutory draftsmen, and the courts");
118. Jack Colldeweih & Samuel Pleasants, Confidential Sources - The Reporter's Privilege Muddle, Comm. & L., Dec. 1991, at 3, 7 (noting Stewart's test "has been adopted nearly word-for-word by many courts"). The influence of Stewart's dissent is also evident in state shield statutes.
119. See William E. Lee, The Priesdy Class: Reflections on a Journalist's Privilege, 23 Cardozo Arts & Ent L.J. 635, 666 (2006).
120. See infra Part I.C.3 (discussing Judge David Tatel's proposal).
121. See supra notes 30-31 and accompanying text.
122. See, e.g., United States v. States, 135 F.3d 963, 970 (5th Cir. 1998) ("[C]onfidential sources would be reluctant to approach the media if they knew that the press could be compelled to disclose their identities. . . . Yet there is little reason to fear that on-the-record sources will avoid the press simply because the media might turn over nonconfidential statements to the government");
123. LaRouche Campaign, 841 F.2d at 1181 ("When there is no confidential source or information at stake, the identification of First Amendment interests is a more elusive task.").
124. See Blasi, supra note 31, at 284 ("[N]ewsmen regard protection for the identity of anonymous sources as more important than protection for the contents of confidential information given by known sources . . . .").
125. See, e.g., In re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d. 496, 501 (D.N.J. 2000) ("The seeker of information is required to prove less where, as here, the information sought is nonconfidential and the source self-avowed.");
126. NLRB v. Mortensen, 701 F. Supp. 244, 248 (D.D.C 1988) ("Before requiring a journalist to testify, courts have examined whether the litigant seeks discovery of a confidential or nonconfidential source. Many conclude that a lesser showing of need and materiality is required for discovery of nonconfidential material than for the identity of confidential sources.").
127. 656 F.2d 705 (D.C. Cir. 1981).
128. Id. at 706.
129. Id.
130. Id.
131. Id. at 710-11 (quoting Grosjean v. Am. Press Co., 197 U.S. 233, 250 (1936)).
132. Id. at 711 (quoting N.Y. Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring)).
133. Id.
134. Id. at 710-11 (quoting Grosjean, 197 U.S. at 250). If it had analyzed this question, the court might have had trouble deciding whether classified information would ever be considered "public." By definition, classified information is designed to remain private. On the other hand, just because information is "classified" does not mean its public dissemination would be harmful. Information may be improperly classified, in which case a reporter who receives the information from a confidential source may be seen as serving the public interest by publicizing important information - or by demonstrating that the government classifies information too broadly.
135. See Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 Minn. L. Rev. 515, 588 (2007) ("Protecting the identity of the small minority who leak information that does not serve the public interest is a minor price to pay to encourage the majority of government whistieblowers to come forward, especially when so often the information is improperly classified in the first place.").
136. Zerilli, 656 F.2d at 711 (quoting N. Y. Times Co., 403 U.S. at 717). Although the information emanated from the government and could shed light on the federal investigation, it appeared to bare secrets about the nongovernment employees-the plaintiffs in this case - quoted in the transcripts.
137. See id. at 706.
138. Id. at 711. This point, too, could prove difficult to analyze. The plaintiffs seeking to compel Kantor's testimony could try to portray the article as mere gossip. But Kantor's article arguably informs the public to make a social or economic choice not to associate with the potential criminals whose conversations the transcripts recount. Or perhaps the article could be seen as informing a public exasperated with government leaks to seek political change.
139. Id.
140. 397 F.3d 964, 986-1004 (D.C Cir. 2005) (Tatel, J., concurring).
141. For accounts of the case and the broader scandal it sparked, see generally Robert D. Novak, The Prince of Darkness (2007);
142. Norman Pearlstine, Off the Record: The Press, the Government and the War over Anonymous Sources (2007);
143. Valerie Plame Wilson, Fair Game: My Life as a Spy, My Betrayal by the White House (2007);
144. Joseph Wilson, The Politics of Truth: A Diplomat's Memoir (2005);
145. Max Frankel, The Washington Back Channel, N.Y. Times Mag., Mar. 25, 2007, at 40.
146. 397 F.3d at 965-68.
147. See id. at 965-76.
148. See id. at 976-81 (Sentelle, J., concurring);
149. id. at 981-86 (Henderson, J., concurring);
150. id. at 986-1004 (Tatel, J., concurring).
151. Id. at 997 (Tatel, J., concurring) ("[M]uch as our civil cases balance 'the public interest in protecting the reporter's sources against the private interest in compelling disclosure,' . . . so must the reporter privilege account for the varying interests at stake in different source relationships." (internal citations omitted)).
152. Jaffee v. Redmond, 518 U.S. 1, 8 (1996);
153. see supra note 57 and accompanying text (discussing Jaffee).
154. 397 F.3d at 991 (Tatel, J., concurring).
155. Id. at 997 ("[W] hen the government seeks to punish a leak, a test focused on need and exhaustion will almost always be satisfied, leaving the reporter's source unprotected regardless of the information's importance to the public").
156. Id. at 998.
157. Id. at 1001.
158. Id. at 1002.
159. See Pearlstine, supra note 92, at 70 (calling Tatel "a Clinton appointee often thought sympathetic to the press").
160. See, e.g., Anthony Lewis, Op-Ed, Not All Sources Are Equal, N.Y. Times, Mar. 7, 2007, at A21 (calling Tatel opinion "a wise proposal").
161. Geoffrey Stone, without mentioning Tatel by name, has urged Congress to incorporate a similar balancing test into its federal shield legislation in cases where the source's disclosure broke the law, such as because the information was classified. See Stone, supra note 29, at 56.
162. As one of three concurrences in a 3-0 ruling, Tatel's opinion wields little precedential power. See 397 F.3d at 976-81 (Sentelle, J., concurring); id. at 981-86 (Henderson, J., concurring);
163. id. at 986-1004 (Tatel, J., concurring).
164. See N.Y. Times Co. v. Gonzales, 459 F.3d 160, 163-65 (2d Cir. 2006) (describing factual background).
165. While Judge Robert Sack's dissent urged the court to adopt a modified version of the Tatel balancing approach, see id. at 185-86 (Sack, J., dissenting), the majority rested its ruling solely on the public interest in obtaining the evidence identifying the source of the leak, id. at 171 (majority opinion).
166. Lee v. Dep't of Justice, 401 F. Supp. 2d 123, 139 (D.D.C. 2005).
167. Id.
168. For a first-hand account of Deep Throat's experience in the Watergate investigation, see generally Mark Felt, A G-Man's Life: The FBI, Being "Deep Throat" and the Struggle for Honor in Washington (2006);
169. cf. Barry Sussman, Why Deep Throat Was an Unimportant Source and Other Reflections on Watergate, Comm. of Concerned Journalists, July 24, 2005, at http://www.concernedjournalists.org/print/337 (on file with the Columbia Law Review) (arguing that Deep Throat played only minimal role in uncovering Watergate scandal).
170. For the reporters' account of their work on the story, see generally Carl Bernstein & Bob Woodward, All the President's Men (1974).
171. See, e.g., Pincus, supra note 19, at 28 ("[N]o matter what legal
172. See supra note 29 and accompanying text (justifying confidentiality as tool to shield whisdeblowers).
173. See Lee, supra note 74, at 640 ("Contemporary journalist's privilege cases . . . take place against the backdrop of several highly-publicized instances of fraudulent reporting . . . .").
174. See Kara A. Larsen, Note, The Demise of the First Amendment-Based Reporter's Privilege: Why This Current Trend Should Not Surprise the Media, 37 Conn. L. Rev. 1235, 1262 (2005) (noting that confidentiality can "become a crutch for journalists to plagiarize or fabricate stories").
175. For front-page stories by Blair citing unnamed sources, see, e.g., Jayson Blair, Teenager's Role Tangles Case Against Sniper Suspect, N.Y. Times, Dec. 22, 2002, at Al (citing sources identifying Washington, D.C. sniper suspect John Muhammad's 17-year-old accomplice, Lee Malvo, as triggerman in sniper shootings);
176. Jayson Blair, U.S. Sniper Case Seen as a Barrier to a Confession, N.Y. Times, Oct. 30, 2002, at Al (citing sources accusing federal prosecutor of cutting short interrogation of Muhammad even though Muhammad appeared to be about to confess). Both reports have since been revealed to be seriously flawed, if not outright false. See Seth Mnookin, Hard News, The Scandals at The New York Times and Their Meaning for American Media 120-25 (2004) (discussing Blair's reporting on sniper attacks).
177. An independent panel detailed Kelley's deceptive tactics in a 2004 report commissioned by USA Today. See Bill Hilliard et al., The Problems of Jack Kelley and USA Today 15 (2004), available at http://www.usatoday. com/news/2004-04-22-report-one-x.htm (on file with the Columbia Law Review) ("If there was one aspect of Jack Kelley's flawed work that too many editors accepted on myopic faith, it was his handling of confidential, or anonymous sources.").
178. Dick Thornburgh & Louis D. Boccardi, On the September 8, 2004 60 Minutes Wednesday Segment "For the Record" Concerning President Bush's Texas Air National Guard Service 78 (2005), available at http://wwwimage.cbsnews.com/htdocs/pdf/complete-report/CBS-Reportpdf (on file with the Columbia Law Review).
179. See id. at 8-28 (describing initial report and subsequent fallout).
180. See id. at 14-15 (noting that CBS fact "vettere" told independent panel investigating faulty report "that they did not think they heard the name Bill Burkett as the source of the documents prior to the airing of the Segment").
181. Papandrea, supra note 87, at 539 (noting that fabrications "represent a very small percentage of all journalistic activity").
182. See supra notes 29-30 and accompanying text But see BeVier, supra note 31, at 483 ("The problem with the 'encourage and protect whisdeblowere' argument for the reporter's privilege is that the press is far from the only - and indeed it is itself the least accountable - means by which government wrongdoing can be reported and corrected [while] protecti[ng] . . . whisdeblowere.").
183. See Bryan E. Denham, Anonymous Attribution During Two Periods of Military Conflict Using Logistic Regression to Study Veiled Sources in American Newspapers, Journalism & Mass Comm. Q., Autumn 1997, at 565, 565 ("While information obtained or reported anonymously can enhance the marketplace of ideas and foster public debate, it also can allow public officials and others to shirk responsibility for controversial information and perpetuate the more ominous practice of journalists or their sources fabricating stories entirely.").
184. See Jeffrey Toobin, Name That Source, The New Yorker, Jan. 16, 2006, at 30, 32 (quoting Martin Kaplan, associate dean of Annenberg Sch. for Commc'ns).
185. One study, by Bryan Denham, looked at uses of anonymous attribution in The Associated Press, the Los Angeles Times, and The Washington Post, and found that the Post relied on such sources more often than the other two organizations. See Denham, supra note 122, at 573. Denham speculated that the Post's emphasis on political coverage, coupled with the paper's tendency to serve as a source of news leaks, contributed to that result Id. at 574-75.
186. Another study, examining the use of confidential sources in television news reports about the Bill Clinton-Monica Lewinsky scandal, labeled Washington, D.C. "th anonymous-source capital of the world." Steven A. Esposito, Anonymous White House Sources: How They Helped Shape Television News Coverage of the Bill Clinton-Monica Lewinsky Investigation, Comm. & L., Sept 1995, at 1, 15.
187. In some cases, however, confidentiality may lead sources to make more honest assessments. See Pearlstine, supra note 92, at 4 ("[M]ost journalists believe information from anonymous sources is more trustworthy than the canned, on-the-record quotes printed in press releases and uttered at news conferences by government officials, executives, and celebrities.").
188. Michael Isikoff &John Barry, Gitmo: SouthCom Showdown, Newsweek, May 9, 2005, at 10, 10.
189. Id.
190. See Carlotta Gall, Muslims' Anti-American Protests Spread from Afghanistan, N.Y. Times, May 14, 2005, at A3.
191. Mark Whitaker, The Editor's Desk, Newsweek, May 23, 2005, at 6, 6. The retraction did not explain why the original report cited "sources" even though it was provided by a single source.
192. See id. (withholding source's name);
193. see also Jack Shafer, Down the Toilet at Newsweek, Slate, May 17, 2005, at http://www.slate.com/id/2118826/
194. (on file widi the Columbia Law Review) ("[Newsweek] let its anonymous sources predict the contents of a future government document, a journalistic no-no as far as I'm concerned.").
195. See From the Editors, The Times and Iraq, N.Y. Times, May 26, 2004, at AlO (admitting that much of Times's prewar reporting "was not as rigorous as it should have been").
196. See The Times and Iraq: A Sample of the Coverage, N.Y. Times, May 26, 2004, at http://nytimes.com/critique (on file with the Columbia Law Review).
197. Patrick E. Tyler & John Tagliabue, Czechs Confirm Iraqi Agent Met with Terror Ringleader, N.Y. Times, Oct. 27, 2001, at A1.
198. Judith Miller, Defectors Bolster U.S. Case Against Iraq, Officials Say, N.Y. Times, Jan. 24, 2003, at A11.
199. Judith Miller, U.S.-Led Forces Occupy Baghdad Complex Filled widi Chemical Agents, N.Y. Times, Apr. 24, 2003, at A19.
200. See Edward Wasserman, A Critique of Source Confidentiality, 19 Notre Dame J.L. Ethics & Pub. Pol'y 553, 563 (2005) ("[S]ecrecy may . . . hinder accountability by interposing the journalist between informant and public, and preventing third-parties from challenging sources over inaccuracies, indiscretions, or lies.").
201. See supra note 31.
202. See BeVier, supra note 31, at 475-76 ("[W]e do not know how much [confidentially sourced] information is from sources who would not have disclosed it without a credible promise of confidentiality that included information sought in the course of litigation."). Researchers have not overlooked this point entirely.
203. See, e.g., Blasi, supra note 31, at 241-42 ("Many editors and reporters feel that reporters could get a great deal more information on the record if they pressed their sources more aggressively and were less concerned about really being on the 'inside.'").
204. See BeVier, supra note 31, at 478 ("[W]hen the consumers of the information that the press provides - i.e., the public - do not know its source, they are completely dependent on the press' assessment and implicit guarantee of the source's reliability, trustworthiness, and appropriate motivation.").
205. For a discussion of the various motives - pure and impure - that can motivate so-called "whisdeblowere," see generally Terry Morehead Dworkin & Elletta Sangrey Callahan, Employee Disclosures to the Media: When Is a "Source" a "Sourcerer"?, 15 Hastings Comm. & Ent L.J. 357 (1992). For one writer's classification of the reasons that motivate someone to leak information to a journalist,
206. see Ryan Grim, The Art of the Leak, Politico, Nov. 14, 2007, at http://www.politico.com/news/stories/1107/6895.html (on file with the Columbia Law Review).
207. The disclosure of Valerie Plame's identity, see supra notes 92-93 and accompanying text, offers a prime example of how a source's motives can alter how that source's information is perceived. The source whose identity Judith Miller sought to withhold turned out to be Scooter Libby, the chief of staff to Vice President Dick Cheney.
208. See David Johnston & Douglas Jehl, Times Reporter Free from Jail; She Will Testify, N.Y. Times, Sept 30, 2005, at Al.
209. Some commentators who believe Miller deserved the protection of a journalist's privilege not to testify also believe that the promise of confidentiality to Libby, who seemed to be motivated by political revenge, failed to serve the public interest See Lewis, Public Lecture, supra note 27, at 18 (calling Miller case "not an example of the press performing its vital function as a whisde-blower, exposing official wrongs").
210. Norman Pearlstine argues that "[t]he source who seeks confidentiality should typically be risking livelihood, life, or reputation." Pearlstine, supra note 92, at 252.
211. See Strupp, supra note 9, at 34-35 ("Nearly all of the nation's major newspapers and news services have either rewritten their policies on sourcing, or at least reminded journalists of their existence . . . .").
212. See, e.g., Comm'n on Freedom of the Press, A Free and Responsible Press 25 (1947) ("If the veracity of statements is to be appraised, those who offer them must be known. Identification of source is necessary to a free society.");
213. Gene Foreman, Confidential Sources: Testing the Readers' Confidence, Nieman Rep., Summer 1984, reprinted in Nieman Rep., Winter 1999/2000, at 123, 123 ("The use of unnamed sources in a news story should be a last resort, not just an easy alternative to documenting the information from the public record or quoting someone willing to be named.").
214. See supra Part ILA (describing problematic uses of anonymous sources).
215. See, e.g., Hilliard et al., supra note 116, at 17 (describing new USA Today guidelines stating that " [a] nonymous sources must be cited only as a last resort") ;
216. Jonathan D. Glater, Keeping CBS's Eye on Its Own World, N.Y. Times, Jan. 15, 2005, at C1 (describing renewed commitment to sourcing standards by CBS News);
217. David Cay Johnston, Newsweek Vows to Curb Anonymity, N.Y. Times, May 23, 2005, at C6 (describing Newsweek pledge to "tightly limit the use of unnamed sources");
218. Memorandum from The N.Y. Times Co., Confidential News Sources (Feb. 25, 2004), available at http://www.asne. org/images/ nytpolicyonconfidentialnewssources.pdf (on file with the Columbia Law Review) [hereinafter N.Y. Times, Confidential News Sources] (restating sourcing policy). Reform efforts have reached beyond the news organizations linked to recent scandals.
219. See Lorne Manly, Big News Media Join in Push to Limit Use of Unidentified Sources, N.Y. Times, May 23, 2005, at C1 (describing industry-wide emphasis on proper use of confidential sources).
220. See, e.g., Am. Soc'y of News Editors, Statement of Principles art. VI (Aug. 20, 1996), at http://www.asne.org/kiosk/archive/principl.htm (on file with the Columbia Law Review) ("Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly. Unless there is clear and pressing need to maintain confidences, sources of information should be identified.").
221. See, e.g., Wash. Post, Standards and Ethics § D (Feb. 16, 1999), at http://www. asne.org/ideas/codes/washingtonpost.htm (on file with the Columbia Law Review) [hereinafter Wash. Post Standards] ("[R]eporters must make every reasonable effort to get it on the record. If that is not possible, reporters should consider seeking the information elsewhere.").
222. L.A. Times, Ethics Guidelines (July 20, 2007), at http://latimesblogs. latimes. com/readers/2007/07/los-angeles-tim.html (on file with the Columbia Law Review) [hereinafter L.A. Times Guidelines].
223. Journalism ideals emphasize the need to verify even facts that seem self-evident. The traditional standard is: "If your mother says she loves you, check it out" Bill Kovach & Tom Rosenstiel, The Elements of Journalism: What Newspeople Should Know and the Public Should Expect 90 (2001).
224. See, e.g., N.Y. Times, Confidential News Sources, supra note 145, at 2 ("Confidential sources must have direct knowledge of the information they are giving us-or they must be the authorized representatives of an authority, known to us, who has such knowledge.").
225. See, e.g., L.A. Times Guidelines, supra note 148 ("Sources should never be permitted to use the shield of anonymity to voice speculation . . . .").
226. See, e.g., N.Y. Times, Confidential News Sources, supra note 145, at 2 ("We do not grant anonymity to people who use it as cover for a personal or partisan attack.").
227. Ian Ayres raised this issue in criticizing Judith Miller's reporting for The New York Times. See Ian Ayres, First Amendment Bargains, 18 Yale J.L. & Human. 178, 181-83 (2006) (questioning whether Miller's loyalties lay with her source or her employer).
228. See, e.g., Associated Press, Statement of News Values and Principles (Feb. 16, 2006), available at http://www.ap.org/newsvalues/index.html (on file with the Columbia Law Review) [hereinafter A.P. News Values].
229. N.Y. Times, Confidential News Sources, supra note 145, at 2.
230. S.F. Chronicle, Ethical News Gathering § 6(a) (Feb. 17, 1999), available at http:/ /www.asne.org/ideas/codes/sanfranciscochronicle.htm (on file with the Columbia Law Review).
231. See, e.g., San Jose Mercury News, Ethics Policy (May 2004), available at http:// www.mercurynews.com/ethicspolicy (on file with the Columbia Law Review).
232. See, e.g., N.Y. Times, Confidential News Sources, supra note 145, at 4 (discussing when corroborating sources may be necessary).
233. Id.
234. See Kovach & Rosenstiel, supra note 149, at 80-84 (discussing virtues of transparency in journalism).
235. See, e.g., N.Y. Times, Confidential News Sources, supra note 145, at 3 ("When we agree to anonymity, the reporter's duty is to obtain terms that conceal as little as possible of what the reader needs to gauge reliability.").
236. See, e.g., A.P. News Values, supra note 154 ("We must explain in the story why the source requested anonymity.");
237. Wash. Post Standards, supra note 147, §D ("[R]eporters should request an on-the-record reason for concealing the source's identity and should include the reason in the story.").
238. Norman Pearlstine, the former editor-in-chief of Time, makes this point explicit in the model editorial guidelines he presents as a model for news organizations to follow.
239. See Pearlstine, supra note 92, app. at 260 ("Readers and viewers should know why we have decided to grant anonymity to a source.").
240. Wasserman's "expressibility test" draws upon the work of Annette Baier. See Wasserman, supra note 136, at 556 n.6
241. (citing Annette C. Baier, Moral Prejudices: Essays on Ethics 120-25 (1994)).
242. Id. at 567.
243. Id. at 567-68.
244. See id. at 568 ("After the fact, either party to the agreement can buff his or her view of the relationship to make it morally pristine.").
245. Id. That scrutiny sometimes reveals empty explanations. See, e.g., Clark Hoyt The Public Editor, Culling the Anonymous Sources, N.Y. Times, June 8, 2008, § 4, at 12 (describing study's finding that "nearly 80 percent" of anonymous sources cited in New York Times "were still not adequately described to readers" despite policy requiring such explanations).
246. See Strupp, supra note 9, at 34, 36 (summarizing studies finding decreased dependence on confidential sources).
247. See Blake D. Morant, The Endemic Reality of Media Ethics and Self-Restraint, 19 Notre Dame J.L. Ethics & Pub. Pol'y 595, 619 (2005) ("Consciousness-raising produced by ethical codes constitutes a critical component in responsible, journalistic behavior.").
248. Id. at 613-14.
249. See supra Part II.B.1 (discussing industry guidelines' last-resort requirement).
250. See, e.g., Jack Shafer, Anonymice Devour Times, Slate, Apr. 21, 2006, at http:// www.slate.com/id/2140423/ (on file with the Columbia Law Review)
251. [hereinafter Shafer, Anonymice] (describing prevalence of unnamed sources in New York Times article about potential personnel changes in White House Counsel's office).
252. See Jack Shafer, Lord of the Pigs?, Slate, July 27, 2005, at http://www.slate.com/ id/2121636/ (on file with the Columbia Law Review) (criticizing New York Times for printing unnamed source's quote accusing movie director Peter Jackson of "piggishness").
253. Shafer, the media critic for Slate, frequendy highlights journalistic uses of what he calls "anonymice," which he defines as "those pesky, gratuitous, and sometimes misleading unnamed sources I've railed about again and again." Shafer, Anonymice, supra note 173. For more columns by Shafer addressing confidential sources,
254. see, e.g., Jack Shafer, Anonymice Infestation!, Slate, Nov. 17, 2004, at http://www.slate.com/id/2109873/ (on file with the Columbia Law Review) (decrying use of twenty-two anonymous quotes in single New York Times article);
255. Jack Shafer, Pampered Anonymice, Slate, Nov. 3, 2003, at http:// www.slate.com/id/2090660/ (on file with the Columbia Law Review) (criticizing reliance on "anonymice" to source article on Iraq's flat tax).
256. See supra note 147 and accompanying text.
257. See Offering Anonymity Too Easily to Sources, Nieman Rep., Summer 2005, at 42, 43 (quoting Lucy Dalglish, executive director of Reporters Comm. for Freedom of the Press, as saying, "In the past few weeks reporters have called, and the first thing out of their mouth is, 'You want to go off the record?'").
258. See supra notes 164-168 and accompanying text (discussing "expressibility test").
259. See Daniel Okrent, The Public Editor, An Electrician from the Ukrainian Town of Lutsk, N.Y. Times, June 13, 2004, §4, at 2 (highlighting uninformative and misleading descriptions);
260. Daniel Engber, What's a Senior Administration Official?, Slate, Nov. 18, 2005, at http://www.slate.com/id/2130669/ (on file with the Columbia Law Review) (same).
261. See supra note 171 and accompanying text.
262. See Morant, supra note 170, at 614 ("Even if the problems associated with ambiguity were resolved, the natural and somewhat pervasive competition for audience and ratings can overshadow the objectives of ethical codes.").
263. See Marianne M.Jennings, Where Are Our Minds and What Are We Thinking? Virtue Ethics for a "Perfidious" Media, 19 Notre Dame J.L. Ethics & Pub. Pol'y 637, 676 (2005) ("The sense that 'the scoop is everything' . . . [has] contributed to the clouded judgment of individuals, newsrooms, editors, and their newspapers.").
264. The most famous recent example of a false scoop occurred in 2004, when the New York Post reported on its front page, without attribution, that Democratic presidential candidate John Kerry had selected Dick Gephardt to be his running mate.
265. See Kerry's Choice: Dem Picks Gephardt as VP Candidate, N.Y. Post, July 6, 2004, at 1. The day the report appeared, Kerry named John Edwards as his running mate.
266. See Kerry's Choice: Dem Picks Edwards as VP Candidate (Really), N.Y. Post, July 7, 2004, at 1.
267. In 2005, for example, Columbia University released the results of an investigation into allegations of anti-Semitism by professors to The New York Times one day before the results were to be made public. The Times reported the findings, which cleared the professors of wrongdoing, on its front page.
268. See Karen W. Arenson, Columbia Panel Clears Professors of Anti-Semitism, N.Y. Times, Mar. 31, 2005, at A1. It was later revealed that in return for the early access to the information, the Times promised Columbia that its article would not "seek reaction from other interested parties," such as those who might cast doubt on the findings.
269. See Daniel Okrent, The Public Editor, EXTRA! EXTRA! Read Not Quite Everything About It!, N.Y. Times, Apr. 10, 2005, § 4, at 12.
270. See Ron F. Smith, Groping for Ethics in Journalism 46-48 (4th ed. 1999) (analyzing electronic media's effect on competitive pressures).
271. Cf. Alicia C Shepard, Anonymous Sources, Am. Journalism Rev., Dec. 1994, at 18, 18 (discussing 1979 study in which most editors surveyed "said competition forced them to use unnamed sources").
272. See Ben H. Bagdikian, When the Post Banned Anonymous Sources, Am. Journalism Rev., Aug.-Sept 2005, at 33, 33. The lexicon of journalist-source relationships recognizes different degrees of confidentiality. Off the Record, the recent book by former Time Inc. editor-in-chief Norman Pearlstine, defines some of the familiar terms.
273. See Pearlstine, supra note 92, app. at 261. In order of lowest to highest degree of confidentiality, information may be presented "on the record," meaning "[t]he source can be named and identified by tide, rank, job description, or other relevant information"; on "background" or "not for attribution," meaning "[t]he quote or information may be used for publication, provided the source is not identified by name"; on "deep background," meaning "[t]he information can be used in or to inform a story and it can lead a journalist to other sources for confirmation"; or "off the record," meaning "[t]he quote or information from the source may not be used in a story or for further reporting." Id. Sometimes, journalists and sources add further nuance to those terms. Matt Cooper, the Time reporter subpoenaed to name the source who told him about Valerie Plame, see supra note 92 and accompanying text, famously wrote in an email that one source, Karl Rove, had provided information on "double super secret background."
274. See Pearlstine, supra note 92, at 102. Cooper later testified that "double super secret background" "was not 'a journalistic term of art,' but a reference to the film Animal House, in which John Belushi's wild Delta House fraternity is placed on 'double secret probation.'"
275. Id. at 128.
276. Bradlee's orders required Post reporters to walk out of "background" briefings and to announce that they would not listen to "off the record" briefings. See Bagdikian, supra, at 33.
277. See supra note 124.
278. See Bagdikian, supra note 186, at 33.
279. Id.
280. Id.
281. See Daniel Okrent, The Public Editor, The Report, the Review and a Grandstand Play, N.Y. Times, June 27, 2004, § 4, at 2.
282. Id.
283. Daniel Okrent, The Public Editor, Q. How Was Your Vacation? A. Pretty Newsy, Thanks, N.Y. Times, Sept. 12, 2004, § 4, at 2.
284. These names are inspired by Alexander Hamilton and Samuel Adams, Founding Fathers who also each founded a newspaper.
285. See supra Part LC (describing federal courts' fixed approach).
286. See supra Part II.A (describing potential harm caused by confidential sourcing).
287. See supra Part I.B.1 (showing that courts weigh interest in compelling testimony more heavily in grand jury proceedings than in criminal cases, and more heavily in criminal cases than in civil cases).
288. See supra note 73 and accompanying text (describing three-part test).
289. See supra Part II.B.1.
290. See supra note 149 and accompanying text.
291. See supra Part II.B.2.
292. See supra Part II.B.3.
293. Wasserman, supra note 136, at 568;
294. see supra notes 164-168 and accompanying text (discussing Wasserman's formulation of "expressibility test" for journalistic uses of confidential sources).
295. The explanation should address Adams's motives both for releasing the information and for requesting confidentiality. An example might read: "The source said he contacted the newspaper because he believed the public had a right to know about interrogation tactics used at Guantanamo Bay. He provided the information on the condition that he not be named because he feared that he would encounter physical harm if his identity were revealed."
296. A good faith attempt to pass the expressibility test might state: "The source has provided information to the newspaper in the past, and diat information has always proven to be accurate. Furthermore, the newspaper believes the source is in a position to know about the inner workings of the CIA and interrogations at Guantanamo Bay."
297. In Hamilton's case, such an explanation should address the argument, raised often by the Bush Administration, that disclosures of information related to national security activities endanger the nation. See, e.g., Sheryl Gay Stolberg, Bush Condemns Report on Sifting of Bank Records, N.Y. Times, June 27, 2006, at Al
298. (quoting Vice President Cheney as asserting that "[s]ome in the press, in particular The New York Times, have made the job of defending against further terrorist attacks more difficult by insisting on publishing detailed information about vital national security programs"). Hamilton's article should explain why it believes the benefits of disclosure outweigh the harms. One possibility: "The newspaper believes this disclosure serves the public interest by informing citizens of their government's actions. Furthermore, we believe that a disclosure would put the nation at risk only if it revealed vulnerabilities in the national defense system that terrorists might target This disclosure does not fall into that category."
299. See supra notes 96-102 and accompanying text (discussing Tatel's approach).
300. See Smith v. Van Gorkom, 488 A.2d 858, 872-73 (Del. 1985) (discussing business judgment rule under Delaware corporate law) ;
301. Auerbach v. Bennett, 393 N.E.2d 994, 1002 (N.Y. 1979) ("While the court may properly inquire as to the adequacy and appropriateness of the committee's investigative procedures and methodologies, it may not under the guise of consideration of such factors trespass in the domain of business judgment").
302. See Auerbach, 393 N.E.2d at 1003 ("Proof . . . that the investigation has been so restricted in scope, so shallow in execution, or otherwise so pro forma or halfhearted as to constitute a pretext or sham . . . would raise questions of good faith or conceivably fraud which would never be shielded by that doctrine.").
303. Lee v. Dep't of Justice, 401 F. Supp. 2d 123, 139 (D.D.C. 2005);
304. see also supra notes 107-108 and accompanying text (discussing Lee's rejection of Tatel proposal).
305. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 1001 (D.C. Cir. 2005) (Tatel, J., concurring) (asking whether "sources released information more harmful than newsworthy");
306. see also supra notes 96-102 (discussing Tatel approach).
307. See Eliason, supra note 25, at 435 ("If the privilege is left to turn on a standard such as 'newsworthiness,' then courts are put in the inevitable position of making normative judgments about the importance to the public of particular reporting, based on its content");
308. Lee, supra note 74, at 669 ("[N]ews value is purely subjective and a source would have to be clairvoyant to anticipate how a court would later balance the newsworthiness of a leak against its harmful effects.").
309. 397 F.3d at 1002 (Tatel, J., concurring);
310. see also supra note 102 and accompanying text (discussing Tatel's analysis of information's value).
311. See Lewis, Public Lecture, supra note 27, at 18 (asking, in reference to Plame disclosure, "What is the public interest in protecting the autfior of that nasty business?");
312. Stone, supra note 29, at 56 (arguing that disclosure of Plame's identity was not "information of substantial value");
313. see also supra note 104 (noting Lewis's and Stone's opinions toward Tatel test).
314. Editorial, Karl Rove, Whisdeblower, Wall St. J., July 13, 2005, at A13.
315. 397 F.3d at 1003 (Tatel, J., concurring) ("It thus makes no difference how these reporters responded to the information they received ....").
316. Id. ("[Cooper's] story revealed a suspicious confluence of leaks, contributing to the outcry that led to this investigation.").
317. The Supreme Court has recognized the role that editorial process plays in filtering information. See Miami Herald Publ'g Co. v. Tomillo, 418 U.S. 241, 258 (1974) ("A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.").
318. That is not to say this model eliminates uncertainty in privilege claims. The model, after all, applies to just one side of the balancing test the interest in newsgathering. Even if journalist and source could guarantee full compliance with procedural mechanisms, they would remain unable to predict the factors that affect the other interest whether testimony is sought in a grand jury, criminal, or civil context, and whether the testimony satisfies the relevance, unavailability, and necessity test. Vaguely worded procedural guidelines also lead to uncertainty. See supra note 171 and accompanying text (discussing vagueness of journalism guidelines);
319. see also infra Part III.C.4 (responding to concerns about approach's reliance on vague provisions).
320. See Eric M. Freedman, Reconstructing Journalists' Privilege, 29 Cardozo L. Rev. 1381, 1388 (2008) ("[A]ny qualified reportorial privilege which depends on judicial balancing of the importance of disclosure in individual cases . . . provides no predictable standard for when disclosure will occur . . . .").
321. See Stone, supra note 29, at 52 (arguing that qualified privilege "disregards the cost to society of all the disclosures that sources do not make because they are chilled by the uncertainty of the qualified privilege").
322. For a more detailed discussion of the incentivizing effects this Note's recommendation would have, see infra Part III.B.1.
323. See Richard A. Epstein, International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News, 78 Va. L. Rev. 85, 85-86 (1992) ("Reliance upon customary practices reduces many of the problems of knowledge for the legal system.").
324. The U.S. Department of Justice, responding to a Freedom of Information Act request, said it issued "approximately 65" subpoenas to journalists from 2001 through 2006, which works out to an average of about eleven per year. See Reporters Comm. for Freedom of the Press, Shields and Subpoenas: The Reporter's Privilege in Federal Courts, at http://www.rcfp.org/ shields-and-subpoenas.html (last updated June 27, 2008) (on file with the Columbia Law Review).
325. Furthermore, procedures devised from case law may quickly become ill-suited to a fast-moving media environment. An analogy can be drawn here to "regulatory lag," where government regulations fail to keep pace with new developments. See Teresa Moran Schwartz, Regulatory Standards and Products Liability: Striking the Right Balance Between the Two, 30 U. Mich. J.L. Reform 431, 444-45 (1997) (explaining that "government standards frequendy become outdated" because of time-consuming "administrative rulemaking procedures").
326. See supra note 142 and accompanying text (noting renewed emphasis on procedural guidelines in wake of recent scandals).
327. See supra Part II.B (discussing procedural mechanisms for use of confidential sources).
328. See supra Part II.C.2 (discussing pressures that trigger race to the bottom).
329. See Eliason, supra note 25, at 446 ("There is reason to doubt the accepted wisdom that a federal reporter's privilege law would have any real impact on the press or on the willingness of the sources to come forward. Lawmakers should not simply accept at face value the alleged benefits of a privilege.").
330. See BeVier, supra note 31, at 470 ("The press' view that it should be the final arbiter of its public duties, as well as its pervasive resistance to being treated like other citizens or to being held legally accountable in any context, suggests that the press . . . regard[s] itself as above the law.").
331. But see Blasi, supra note 31, at 284 ("[N]ewsmen prefer a flexible ad hoc qualified privilege to an inflexible per se qualified privilege.").
332. Jane Kirtley, Protecting the Privilege: The Argument that Shielding Sources' Identities Serves the "Public Interest" Actually Hurts Press Freedom, Am. Journalism Rev., Dec-Jan. 2006, at 70, 70.
333. See generally supra Parts II.C.2-3 (discussing competitive pressures and race-to-the-bottom problem).
334. See generally supra Part ILC (discussing race-to-the-bottom problem).
335. The journalism community does not necessarily recognize a distinction between journalists who break confidentiality promises because they are untrustworthy and journalists who break such promises because a court ordered them to do so. Many believe a court order is not a valid reason to identify a confidential source, even if refusing the order lands the reporter in jail. Norman Pearlstine, the former Time Inc. editor-in-chief, encountered sharp
336. See supra Part IIIA.2 (explaining why procedural model gives news organizations more control over outcome of privilege cases).
337. See supra Part II.C.2 (discussing how competitive pressures weaken procedural guidelines).
338. See supra notes 186-190 and accompanying text (describing consequences of Washington Post experiment banning confidential sources).
339. These incentives are stronger than those offered not only by the courts' current fixed treatment of the newsgathering interest, but also by Tatel's substantive model. Under the Tatel approach, once Adams decides that his information is more newsworthy than harmful, he can release it to any journalist he trusts to guard his confidentiality. If he releases it to Hamilton, then whether Hamilton follows journalistic procedures before publication has no bearing on the outcome of a potential privilege claim-even though her adherence to procedures affects the public interest. Furthermore, it is unclear how sources would conduct the "newsworthiness" balancing test before deciding to release their information. Presumably, sources are less equipped to assess newsworthiness than are journalists and, perhaps, judges. See Anthony L. Fargo, The Year of Leaking Dangerously: Shadowy Sources, Jailed Journalists, and the Uncertain Future of the Federal Journalist's Privilege, 14 Wm. & Mary Bill Rts. J. 1063, 1110 (2006) ("How does a potential source know whether she will be considered 'bad' or 'good' when the heat is on the reporter to reveal her name?").
340. See supra notes 22-26 and accompanying text (discussing definitional problem).
341. See Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) ("The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.").
342. In practice, the procedural test might nonetheless favor established media organizations. But such organizations might merit some extra protection. One concern in rejecting the privilege is that the duty to provide testimony will burden journalists, taking them away from newsgathering. See supra notes 32-34 and accompanying text (discussing government's use of reporters as investigators). If Hamilton reports year-round for a large media organization, then she is more susceptible to burdens of testifying than someone who posts a single blog item and vows never to publish anything again.
343. See Berger, supra note 25, at 1406-16 (urging courts to analyze whether party invoking privilege has engaged in procedures designed to gather and disseminate "journalistic truth").
344. Id. at 1411.
345. Randall Eliason has noted that a news organization's reputation may not align with the value of a particular piece of journalism that media outlet produces. See Eliason, supra note 25, at 436 ("[I]f a particular CNN report is concerned with the latest romantic escapades of some overpaid movie star, or the most recent developments on American Idol, is that report 'newsworthy' and deserving of the privilege simply by virtue of its being on CNN?").
346. The narrower timeframe also makes this Note's proposal easier to administer than a procedural inquiry that sets no limits on the relevance and amount of evidence a court should consider in assessing whether a journalist follows procedures "on a regular basis."
347. See supra Part III.B.2 (describing how proposal solves definitional problem).
348. It should be easier to show nonidentifying proof of adherence to the last-resort and transparency requirements. For the last-resort requirement, a journalist such as Hamilton may be unwilling to reveal the details of any discussion she had with Adams in which she urged him to speak on the record. But she could produce phone records and other evidence showing that she tried to verify the information from a nonconfidential source. Meanwhile, evidence that she followed the transparency requirement will, by definition, already be available, since that evidence consists of public explanations justifying the reliance on a confidential source.
349. See Ethan D. Wohl, Confidential Informants in Private Litigation: Balancing Interests in Anonymity and Disclosure, 12 Fordham J. Corp. & Fin. L. 551, 562-65 (2007) (discussing value of in camera review in cases involving confidential informants).
350. See supra notes 170-171 and accompanying text
351. See supra notes 219-222 and accompanying text (discussing predictability).
352. William Simon uses well-known scandals to show why criminal or unethical actors may prefer vague standards. See William H. Simon, Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct, 22 Yale J. on Reg. 1, 3-12 (2005) (discussing "deliberate ignorance and calculated ambiguity" in Watergate and Enron scandals).
353. See Freedman, supra note 220, at 1392 ("[D]ecisions regarding First Amendment protections do not and should not turn upon the good character of the speaker or the high quality of the journalism involved.").
354. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974) ("The choice of material to go into a newspaper . . . constitute [s] the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press . . . .").
355. See Gilles, supra note 21, at 500 ("One objection to the creation of a journalist/ source privilege is that it will allow the courts to regulate journalism. The lesson is that we are too late. The Court's evolution of libel law has already led to judicial regulation of journalistic practice.").
356. See id. at 502 (arguing that "privilege demands that we craft an image of good journalism" and concluding that "we should favor statute or common law as paths to create such a privilege").