Press
Secret
It is in our human
nature to want to see the disturbing side of society. For some, it helps us feel better about our
own lives, for others it is a way to connect with the darker parts of
ourselves. For others still, they like
to analyze the minds of criminals and criminal activity to see what makes bad
people do bad things. Whatever the
reasons, humans for the most part enjoy watching and reading about the
debauchery of culture. They would not be
able to do so, however, without the media.
Journalists have been given freedoms in order to bring information and
news to the masses. However are there
certain times when the freedom prevents justice from being done, or are there
just certain people who try to overreach their power?
In the 1960’s and 1970’s, newspaper
journalism was being threatened by a new genre of reporting. The television news reports were taking over
and becoming wildly popular with the upper middle class. Newspaper reports had to be edgy, and take
readers on an experience never before had.
Paul Branzburg was just such a reporter.
He did his research, and reported on stories that the public needed to
see for their benefit. He uncovered the
grizzly stories about what American society was truly like. The Camelot period in America was ending, and
Branzburg was there to report on the hay day of crime and drug use.
One
such article in 1969 showed society how some criminals make certain drugs, and
this lead to other articles showing just how easily drugs were infiltrating
America. Branzburg had investigated many
drug users and dealers for months to obtain this information, all the while
protecting their anonymity. When the
articles were published, Branzburg was called to testify to a grand jury
regarding his findings, in the hopes that it would help the government in
figuring out who was behind the drug use in Kentucky where Branzburg was
reporting (eNotes, 2012).
Branzburg
protected his sources, claiming that the first amendment gave the press freedom
to print stories as they see fit, and to protect their sources from the public
eye. The Supreme Court ruled that while
the press does have some freedoms, the press still has to maintain the law and
uphold it. The Court felt that by
keeping a source hidden, the reporters were withholding evidence that could
affect a trial. They also argued that
just because a reporter has to divulge their source, it does not stop them from
reporting the issues. However it was not
a unanimous decision.
There
are nine members of the Supreme Court.
Five members agreed with the decision that journalists should give up
sources when it impeded an investigation by the government. However four of the justices dissented. They wrote their own arguments on why it was
not proper to force a reporter to give up the anonymity of their sources. They argued that the courts can proceed with
an investigation without naming the source themselves, and if the sources are
not protected they would not give any information and therefore the reporters
would not be doing their job correctly.
The Supreme Court went in the other direction and took the side of the
informant in the Cohen v. Cowels Media Co. case of 1982, where they ruled in
favor of the sources right to remain a secret, especially if the reporter
promise confidentiality in the beginning (4 Law school, 2006).
Branzburg
argued during his trial that if his sources were not protected, they would not
divulge any information to him. They
would not trust him with their deepest, darkest secrets, and therefore the true
reporting would be lost. He was so set
on reporting the news and the correct information, and not loosing his
relationship with his sources, that he appealed the Court’s decision, citing
many state decisions over the years that had ruled in favor of protecting the
source’s identity. In the appeals
process, he ended up winning; with the decision then ruling in Branzburg’s
favor that a source should be kept confidential if a promise is made. The Kentucky court then ruled on what the
legal definition of a source of
information was, so as to keep this protected (Cornell law, n.d.).
There
are pro’s and con’s to protecting the identity of a source of information. It should only be done rarely, and when any
other exceptions cannot be made. However
offering to protect a source before they divulge any information can help you
resist the demand for their identity later in a court, depending on the
individual state law. It will, in most
instances, help the source speak more freely about their experiences. However realize before you promise
confidentiality to a source two things.
One, a source can hold you to that promise, and sue you for giving up
their identity if you otherwise said you would keep their anonymity. Two, private sources are untraceable and
therefore make your articles harder to vet, and harder for the public to view
as credible (Citizen media law project, 2011).
Most
of the time there are shield laws that protect journalists from having to
reveal a source. Shield laws are
legislature that protect a journalist from having to testify about their own
reporting, and thus about their sources.
However it is not a federal law, shield laws are individual to their own
states. There are 13 states that
currently do not have any shield laws protecting the journalists there, and the
rest either have absolute laws or laws with some exceptions (RCFP, 2011). If you are in a state where shield laws are
absolute, it protects a journalist from having to testify about their own
reporting, their sources, and give up any information pertaining to the like.
The
states with exceptions to the rule have the exceptions when there is an ongoing
investigation, and the reporters should happen to be involved. In some states, the law is not written for
newer reporting, and only protects news media outlets such as newspapers and
television, not blogs and online reporters.
In some states if the news report violates an individuals 6th amendment
rights to a fair trial, the report and reporter are not protected by the shield
laws. It really does vary from state to
state (Facchetti, 2012). The federal government
provides certain qualified privilege for reporter/source confidentiality. However it is on a case-by-case basis.
There is no set standard for
what a journalist will have to do to get a story. Some live in jail cells or psychiatric
hospitals for months or years to report on the conditions of the
facilities. Some will take drugs to
report on the first hand use of their effects of the mind, and body (PBS, 2000). Some reporters will go so far as to live with
criminals and watch them commit crimes, so that they can report from a first
hand view point what it is like to watch it happen.
All
of this comes down to what individuals believe about their freedoms, and about
the freedom they have to get information on their towns and country. Do you believe that the press and the media
take things too far, and take matters into their own hands, doing anything to
obtain information for a story that could compromise the freedoms and fair
trial of individuals? Or do you believe
that the press has the freedom to protect their sources and their stories, in
order to report the news to society in a timely, trustworthy manner?
References
Citizen media law project. (2011). Retrieved
from http://www.citmedialaw.org/legal-guide/promising-confidentiality-your-sources
Cornell law. (n.d.). Retrieved from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0408_0665_ZO.html
Facchetti, A. (2012). Defamation law blog. Retrieved
from http://www.defamationlawblog.com/2009/07/articles/defamation-basics/what-is-the-california-shield-law/
RCFP. (2011). Retrieved
from http://www.rcfp.org/browse-media-law-resources/guides/reporters-privilege/shield-laws
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