Confidential sources:The good, the bad, and the ugly

In this five-part series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility. News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense. The third installment is about how the use of confidential sources – despite a shield law – may create liability for the reporter or publisher.

Few journalists – and more importantly, few thoughtful readers – can doubt the important role that confidential sources play in journalism. From Watergate more than 40 years ago to current revelations that the president of the United States may have lied to the public and press about the extent of National Security Agency spying on U.S. citizens, the law historically recognizes that confidential sources are crucial to the democratic function of a free press:

“Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” Zerilli v. Smith, 656 F. 2d 705 (DC Cir. 1981).

At present, congressional and Senate committees are working on passage of a federal shield law, which, if properly drafted, will allow journalists (including bloggers doing journalism) to refuse to disclose their sources in most federal cases. Many states already have some form of shield law, and for those of us who believe in the press’ role as public watchdog, that’s a good thing. But reporters and editors – as well as their lawyers – would do well to remember that even with a shield law in place, the use of confidential sources has to be subject to careful review and thoughtful consideration past any shield law. The failure to do so can have disastrous consequences for journalists and publishers.

“TRUST ME, I’M A JOURNALIST”

When a confidential source is utilized to publish a story that creates a defamatory assertion or implication, the fact that you may not have to disclose your source is only half the analysis. If you are sued for libel, and the plaintiff alleges clearly enough that you got it wrong, the burden shifts to you to show that either: a) the sued-upon fact isn’t wrong; or b) if it is wrong, you will need to convince a finder of fact that you had the appropriate basis for relying on a source.

Now ask yourself how the following would sound in court: “Ladies and gentlemen of the jury, I know I said Mr. Jones was a swindler. I have a source that told me so. I promised the source confidentiality, so I can’t tell you who it was. But trust me, I’m a journalist.” This is straight out of the Lionel Hutz playbook.

While it’s true that in varying degrees, journalists have a right to protect source confidentiality, the law recognizes that plaintiffs who allege damage to reputation also have rights. The notion of being able to face and question your accuser and his or her credibility is rooted in due process and fair play. This has led to the development of what some academics call “the no source presumption.” This means that in many cases, if a reporter facing a libel suit refuses to disclose his or her source, the jury is allowed to infer – or may be instructed by the judge – that the reporter never had a source at all.

This played out in a California courtroom in Dalitz v. Penthouse International, Ltd., 168 Cal. App. 3d 468 (Cal. App. 1985) where reporters Jeff Gerth and Lowell Bergman (the latter of “60 Minutes” fame) accused a handful of people of being “mobsters, gangsters and members of organized crime” and implicated the plaintiffs “in the Watergate scandal, nationwide bank failures, securities frauds totaling some $50 billion, criminal misuse of Teamster Pension Funds and other swindles of many kinds.”

The reporters refused to disclose their sources, and instead of holding the reporters in contempt (California has a shield law), the trial court instructed the jury to assume that there was no source for the sued-upon allegations other than those disclosed in the story itself. The appellate court upheld this presumption, noting that:

“Without the disclosure of these sources, we are left to believe merely on faith that the reporters in fact had confidential sources and did not simply embellish and expand upon the information contained in the voluminous mass of books, articles and newspaper clippings with which they have so copiously provided us.” Id.

THE “NO-SOURCE” PRESUMPTION EXPLAINED

Aside from judicial skepticism about reporters’ honesty, courts are sensitive to the notion of a person who alleges reputational harm being able to face one’s accuser. Moreover, in libel cases, the ability to question the state of mind of a reporter and to examine from whom and how they gathered their facts is a matter of due process for the plaintiff.

In DeRoburt v. Gannett Co., Inc., 507 F. Supp. 880 (D. Haw. 1981) a Guam-based newspaper accused the president of Nauru of having made improper loans and having inappropriate relationships with various political entities. The newspaper refused to disclose the identity of the confidential sources. The federal court addressed the inherent unfairness to the plaintiff saying:

“The media defendant cannot have it both ways: he cannot enjoy the protection afforded by the [The First Amendment] and at the same time enjoy a privilege that prevents the plaintiff from obtaining the evidence necessary to carry that burden. Were the media defendant allowed to have it both ways, he would have absolute license, and the libel plaintiff would have no recourse in the courts.” Id.

Instead of holding the reporters in contempt, the court used its discretion in applying the “no-source presumption” and held that:

“When a defendant in a libel action, brought by a plaintiff who is required to prove actual malice […] refuses to declare his sources of information upon a valid order of the court, there shall arise a presumption that the defendant had no source. This presumption may be removed by a disclosure of the sources a reasonable time before trial.” Id.

EXCEPTIONS TO THE RULE: SOURCE PLUS INDEPENDENT REPORTING

This is not to say that a story relying on confidential sources can’t be defended without giving up the source, but it takes skillful and expensive lawyering, and more importantly, pulling this off will usually require convincing a judge that the reporter did not rely solely on whispers in the dark. In other words, a solid foundation of good reporting and fact checking can support this kind of story and keep the sources’ identity confidential.

This was the case in Trump v. O’Brien, 29 A. 3d 1090 (NJ App. Div. 2011), when Donald Trump sued New York Times  journalist Tim O’Brien for allegedly underestimating Trump’s net worth in his book “TrumpNation.” Trump, suing in libel, sought disclosure of the identity of three confidential sources utilized by O’Brien, his notes regarding his interviews with those sources, and various other non-confidential materials relating to O’Brien’s research, writing and editorial processes. O’Brien refused to disclose the sources, and the appellate court found that both New York and New Jersey’s shield laws applied and that O’Brien had no duty to disclose the sources.

Trump argued that this was unfair, and that O’Brien’s relying on sources that Trump couldn’t cross-examine ought to be evidence of the knowing falsity or reckless disregard for the truth (“actual malice”) that public figures are required to prove. The court instead looked at the totality of the reporting, and found that the passages in question were not solely the product of repeating defamatory statements from unnamed people.

The court took notice of the fact that O’Brien did not merely take the anonymous sources at their word but in fact the re-interviewed his confidential sources prior to publishing their net worth estimates. O’Brien also showed the court notes of his meetings which the court found significant, because all three interviews showed “remarkably similar estimates of Trump’s net worth, thereby suggesting the accuracy of the information conveyed.” Id.

According to the court, O’Brien made efforts to verify independently the information gleaned from his sources, and he did not adopt the low estimates of net worth set forth by his anonymous sources as fact. Instead, the court held, O’Brien utilized their lower figures as an illustration of the spread in estimates of Trump’s wealth, while suggesting that, in his own view, Trump’s net worth was far less than he claimed it to be. As a result, the case was dismissed, the court holding that: “[There was no] evidence to support Trump’s conclusion that the confidential sources utilized by O’Brien were fictitious, and no evidence to suggest that O’Brien’s reliance on the confidential sources suggested actual malice on O’Brien’s part.”

In short, careful and skeptical use of confidential sources, backstopped by independent fact checking and analysis may convince a court that your story, although derived from confidential sources, did not blindly adopt their statements as fact. That way, the confidential sources are not so central to the plaintiff’s case that the protections of the shield law should be surmounted by a sense of fairness due the plaintiff.

CHECKLIST FOR CONFIDENTIAL SOURCES AND THE SHIELD LAW

• Is your confidential source making a statement upon which you may be sued? If it is a potentially defamatory allegation, you should consult your newsroom lawyer prior to publication.

• Have you exhausted efforts to independently verify the information that your source gave you? Consider going back to your source and asking if there is any help they can provide.

• Remember that even if your state does have a shield law, they may not be applied in federal court. Don’t be overly emboldened by the shield law: ask yourself “if I have to prove my story in court without giving up my source, am I able to do so?”

• The promise of confidentiality is often considered a binding contract, and sources who are burned have the right to sue a publisher or reporter for financial compensation for lost wages, business opportunities and other expenses. The only way to avoid this possibility is to obtain a written waiver from the source allowing you to name him or her in the event you are sued.

• Never sign an agreement offering to provide your source legal defense in the event they are sued for talking to you. Courts have held this to be evidence of an improper motive on the sources’ part and a form of journalists paying people to say defamatory things. Consult a newsroom lawyer before having any conversations with sources in this regard.

Charles J. Glasser, Jr. spent the last 12 years as Global Media Counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at charlesglasseresq@gmail.com or via www.charlesglasser.com.