A confidentiality catch-22?

Think your unnamed sources are protected by a state shield law? If you are sued for libel, think again.

From the Spring 2007 issue of The News Media & The Law, page 24.

By Elizabeth Soja

The push for a federal shield law to protect journalists’ confidential sources has highlighted recent government threats to source confidentiality and journalistic independence. But even if an iron-clad shield law was passed at the federal level and in every state, a reporter’s sources would not necessarily be safe.

When reporters are sued for defamation based on information provided by confidential sources, they may not be able to rely on their anonymous sources’ credibility when crafting a defense.

“If you rely on confidential sources and then get sued for libel, it’s a catch-22,” said Chicago attorney Steven Mandell, who represents media defendants in libel cases. “How can the plaintiff get inside the reporter’s subjective knowledge if he or she can’t know who the supposed sources are?”

In any defamation case, a defendant can win the lawsuit by proving what was said or written was true since one of the key elements of defamation is that the statement is false. However, providing evidence of truth is a difficult task when the source must remain anonymous.

In other cases, a plaintiff might want to know a source’s identity to prove that the reporter unreasonably relied on the source’s word.

But what happens when the reporter has a right to refuse to reveal his or her source? This conflict of interests has been a pitfall of confidential reporting for years, but not all judges take the same route in balancing the rights and interests of a defamation plaintiff with the rights and interests of the reporter.

Competing concerns

So how are these interests balanced? It depends on the case, Mandell said. Some judges will presume that there was no source at the outset of proceedings, which can mean that the case may never make it to a jury. Judges can also instruct juries to assume there was no source in their deliberations.

More frequently, however, the reporter will simply be prevented from relying on the anonymous source for any part of his or her defense.

In 2002, New York Times columnist Nicholas Kristof cited unnamed sources in his articles about the deadly anthrax attacks that killed five people. Steven Hatfill, a former Army scientist who was publicly named as a “person of interest” in the investigations, sued the Times for defamation based on those columns.

In November, a federal judge in Virginia ruled that since the Times would not reveal the identities of two of Kristof’s sources, the Times could not rely on any information received from those FBI sources in defending the lawsuit. Kristof revealed the identities of three other sources after he said they released him from his pledge of confidentiality.

The high-profile lawsuit was dismissed shortly thereafter, but other cases with similar situations have gone forward.

In 2002, New York Post reporter Marc Berman wrote an article based on confidential sources that said former New York Knicks basketball player Latrell Sprewell “took a swing” at a guest on his yacht but hit a wall instead, injuring his hand. Sprewell sued Berman and the newspaper’s parent company for libel, and Berman refused to reveal the identities of the confidential sources.

The court determined that because Berman and the Post exercised their rights under the New York shield statute to refuse to reveal the sources, they could “not rely on the confidential sources to show that they did not act with actual malice in publishing the article,” the court said, referring to the legal standard a public figure such as Sprewell must meet to collect damages in a libel suit.

The Post and Berman appealed the lower court’s order and are expecting a decision sometime this summer.

Slade Metcalf, an attorney for the Post and Berman, said a court should never “completely bar journalists from at least telling [a judge or jury] that he or she had sources for the information.” If a court wants to impose an order, Metcalf said, it should be “very limited.”

“It’s an issue that media lawyers and journalists are very aware of,” Metcalf said. “When you decide solely to rely on confidential sources for something that is arguably false and defamatory, you do so at your own risk. We’d like to change that rule.”

Alternative measures

Courts will also sometimes allow media defendants to offer evidence that supports an anonymous source’s credibility without revealing the source’s identity. However, according to Mandell, this evidence can only be offered to show the reporter’s state of mind and not to prove the truth of the matter asserted.

For example, in the 1989 case Clyburn v. News World Communications, a panel of appeals court judges in Washington, D.C., allowed evidence that a Washington Times reporter’s sources were government officials.

The court concluded that the reporter could have reasonably relied on these sources and was therefore was unlikely to have written with “actual malice” — that is, knowing or reasonably believing that what he was writing was false.

Additionally, some judges have said that introducing evidence regarding confidential sources waives a reporter’s privilege to refuse to disclose the source’s identity, even when the reporter can claim a very strong privilege under the state’s shield law.

Most notably, a federal court in Nevada applying state law said in 1987’s Laxalt v. McClatchy that “if the defendants are allowed to invoke the Nevada reporter’s privilege regarding their confidential sources, they must do so absolutely.”

The court reasoned that although Nevada’s shield law is one of the strongest in the country, “if the defendants choose to prove their defense through witnesses whose identities are protected by this order, the defendants will be deemed to have waived the privilege.”

Of the 33 states (and the District of Columbia) that have shield laws, six of those states’ laws — Illinois, Minnesota, Oklahoma, Oregon, Pennsylvania, Rhode Island and Tennessee — have express statutory exceptions for defamation cases. In these states, the law either specifically prevents a reporter from claiming the privilege in a defamation case or significantly weakens the privilege.

State shield laws that give reporters only a qualified privilege against compelled testimony will also often end up weighing against the reporter, since the reporter’s confidential information very often goes to the heart of the matter in these types of cases.

In a lawsuit against former Kane County (Ill.) Chronicle columnist Bill Page and Chronicle owner Shaw Newspapers, Illinois Supreme Court Chief Justice Robert Thomas said that he was defamed in 2003 when Page wrote that Thomas’ vote in an attorney discipline case had been improperly influenced by political favors. Mandell represents Page and the Chronicle in that case.

Page used confidential sources in the story and refused to reveal their identities, and Thomas asserted that he needed the sources’ identities to proceed with the case.

A trial court judge wrote that since Thomas’ “whole case rests on the state of mind of Mr. Page when he published the offending articles” and because Page’s “state of mind is totally dependent on who his sources are and what they told him, and whether they were in a position to know what they told him,” the qualified reporter’s privilege granted by Illinois statute did not apply.

Last year, the jury in that case returned the largest libel verdict in Illinois state history — $7 million — in favor of Thomas. In March, a judge reduced the award to $4 million. The verdict is being appealed.

‘A cautionary tale’

Sometimes, courts will take a more drastic approach. In 2002, a court issued a default judgment against a newspaper and a reporter who refused to reveal his source — a move that some media attorneys see as draconian.

Back in 1996, Dr. Lois Ayash sued The Boston Globe and former Globe reporter Richard Knox for libel after the newspaper published an article saying that Ayash had approved a mistaken chemotherapy order that caused two patients’ deaths. The article relied on confidential sources, which both the newspaper and Knox refused to disclose. Ayash also sued the Dana-Farber Cancer Institute for invasion of privacy.

Ayash argued that she needed the identities in order to prove her case against the Dana-Farber Cancer Institute, and the court ordered Knox and the Globe to reveal the sources.

When they refused, the court entered judgment for Ayash in the libel suit and held the Globe in contempt of court. In 2002, a jury determined the damages and the newspaper and Knox were ordered to pay more than $2 million. In 2005, the state’s highest court upheld that award.

The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief on behalf of Knox and the Globe.

“This is bad precedent,” said Knox, who now works for National Public Radio in Boston. “That was what I feared most all along, that it would make it more difficult for future reporters, publishers and broadcasters in Massachusetts to assert any privilege.”

Massachusetts does not have any state shield law, although courts have recognized that a balancing of interests is required when a reporter refuses to comply with a subpoena.

Knox said that while he disagrees with the outcome in his case, he understands that the situation and the state of the law can put judges in difficult predicaments.

“Judges take their jobs seriously, and they want to make sure trials are fair and that both sides have access to the best evidence,” Knox said. “It’s a hard thing to guarantee, so there has to be a balancing test. But the plaintiff in this case didn’t turn every stone.”

Knox said that the legal proceedings — which spanned almost a decade — were tiring. “I would like to have people know, as a cautionary tale, what can happen,” he said.