Endorsing freedom of the press

There are no comments for this page [ Add Comment ]

The truth of the matter is this: Journalists do not very often have to promise confidentiality to their sources. For most of us, it's an occasional necessity.

But here's another bit of truth: Sometimes we have to guarantee to keep a source's identity a secret in order to obtain information the public has a right -- or a need -- to know. Were it not for the ability to grant confidentiality to some sources, government, for example, could operate in the dark without fear of the public finding out about corrupt practices.

Most states have laws that back up a reporter's right to grant confidentiality and, furthermore, protect them from legal fishing expeditions -- prosecutors and defense lawyers like to ask courts to force reporters to divulge names and notes in order to help their cases, under threat of jail time and fines. Unfortunately, Utah is not one of those protective states.

But it soon may be. For the past year or more, the debate over protecting journalistic pledges of confidentiality has raged in the Beehive State's journalistic and legal circles. And after a couple of false starts, the Utah Supreme Court Advisory Committee on the Rules of Evidence has recommended adopting Rules of Evidence 509. Even Attorney General Mark Shurtleff supports the new rule.

Rule 509 recognizes the First Amendment's promotion of a free and unfettered press, and says a reporter's privilege to withhold the identity of a confidential source is important in the service of public oversight of government and private matters that have public consequences. To wit: Before a court could compel a "reporter" -- now widely defined in the age of the Internet blogosphere -- to identify a confidential source or to turn over notes or other information collected as part of the confidentiality promise, it has to clear a high threshold.

In short, Rule 509 provides that, "A news reporter or confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential source information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death." (It does not, however, trump existing statutes that, for example, compel a reporter to reveal information in the case of child abuse.)

But that's not all. The rule establishes one more obstacle to forcing the release of confidential information: "Once the court determines that the party disclosure has met the requirements under the balancing test, the court is required to review the information in camera" -- a legal term meaning out of public view -- "to confirm that the represented need for the information in fact balances in favor of disclosure."

All things considered, we think this provides adequate protection to journalists who find themselves needing to grant confidentiality to sources on important stories. The standard for violating that promise is high. We urge the Utah Supreme Court to adopt this rule when it meets to consider it in the new year. Sources will not provide information to reporters if they know they can be easily identified. This rule will help make sure the free flow of important public information continues.

To make your feelings known to the Utah Supreme Court on this matter, go to the following Web site: www.utcourts.gov/resources/rules/comments/

Comments

Add a comment...

Name:
Comment:
Security Code:	Type the characters to the left in the box exactly as they appear.
Your IP:	38.103.63.60 This address is recorded for security purposes.