Thursday, March 2, 2017

Reporter's Privilege - The Value of Anonymity

Throughout history, the element of anonymity has been the deciding factor on whether or not important information is provided to the public. Works like "Democracy - an American Novel," anonymously published by Henry Adams of the revolution-era Adams political family and "The Autobiography of an Ex-Colored Man," which spotlighted bi-racial identity in America during the turn of the 20th century were both eye-opening exclamations about the state of America at the time that sparked uproar about the identity of the author. Additionally, historic cases like the Watergate scandal that exposed corruption in the Nixon administration would not have come to light had the right to anonymity for sources through reporter's privilege been present.

In our increasingly technological society where everyone seems to document everything, everyone with a camera or internet access is a potential reporter, witness, or source, anonymous or otherwise. As the amount of information and people documenting it increases, the need for a way to protect those who have or wish to provide information without compromising their identity increases as well. Though no federal shield law exists to protect anonymous sources through reporter's privilege, the majority of states in the U.S. have protective statutes on the state level. While these state laws protect journalists and their confidential sources in most cases on the state level, they are "qualitative" statutes, which weigh reporter's privilege against other interests and factors on a case-by-case basis. A federal statute is still needed to ensure the protection of journalists, their sources, and most importantly, the free flow of accurate information to the public.

The element of anonymity is a powerful vehicle for the free flow of information and necessary to ensure trusting relationships between sources and reporters, so long as the anonymous source is providing truthful, accurate information. Individuals who may potentially receive backlash from divulging information would not do so without the protection of anonymity, which can be a massive obstacle for the justice system. This exists in many forms throughout society: in personal engagements, when sharing private or sensitive information the statement can often be finished with "but you didn't hear it from me;" we can upscale this to anonymously tipping the police about a neighbor's suspicious activity, or criminal informants (CIs) providing information to police without their relationship being revealed to criminal associates, or similarly when a corporate employee anonymously provides information about corruption or "unique book keeping" within the management of the corporation. Without anonymity, these people who have valuable, accurate information which could otherwise not be produced would simply not step forward, for fear of personal harm, termination of employment, or worse. In most of these situations, at least a basic level of protection is offered for those who provide information, particularly to law enforcement.

 Much like patient-doctor confidentiality, client-lawyer confidentiality, and clergy confidentiality, which protect doctors, lawyers, and clergymen from testifying against their patients, clients, and congregation, a federal shield law would seek to protect the rights to privacy and free speech and identity of anonymous sources, unless the anonymity of the source could be proven to be a threat to national security, or if the needed information could be legally procured through no other means than the revealing of a source's identity, as per the ruling of Branzburg v. Hayes (1972) which stands as the key precedent for all cases that deal with reporter's privilege, and ruled that to reveal a confidential source the government or prosecution must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."


Ref:  http://www.rcfp.org/digital-journalists-legal-guide/sources-and-subpoenas-reporters-privilege

        https://www.youtube.com/watch?v=0nONQi1S21Q


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