To reveal, or not to reveal— should it even be a question?
By Jesse Ferguson
JN204: Law and Ethics
When someone in a position of power (such as a legal authority) needs to know classified
information that is held in trust by a journalist or a reporter, a hotly contested issue in the world
of journalism is whether the journalist should reveal their source of this information to the
authority. In addition to this being an ethical issue which calls into question a journalist’s
personal integrity, the issue also has the potential to radically alter the institution of journalism.
“Journalists may one day, face the grim choice of breaking their word or
breaking the law.” (Jobb 309) This day perhaps should not have to happen. "The First
Amendment protections that journalists have depended upon and the public have
benefited from are at great risk.” (Fernandez) To elaborate:
Ideally, the First Amendment should protect journalists from revealing their sources
of information. Courts have ruled otherwise, and recent cases have resulted in the
jailing or fining of reporters. (starbulletin.com)3
Ideally, the former would be the case. Things are not as simple though. The courts know that if
the accused have spoken to a journalist, then the journalist is a valuable commodity to the case.
Thus, journalists are increasingly asked to testify. “Journalists are under an unprecedented legal
siege, battling the efforts of prosecutors, judges and defense attorneys to acquire information
about their confidential sources.” (Fernandez) 4
Journalists are obviously not pleased about this lack of security. Some lawyers aren’t
"One of the things we are most regrettably seeing in the spread of this epidemic
of subpoenas and leak investigations is an attack on the ability of journalists to
promise confidential treatment to sources,'' (renowned media attorney, Floyd)
1 Jobb, Dean. “Media Law for Canadian Journalists”
2 Fernandez, Elizabeth. “Slew of journalists under legal siege for not revealing sources”
3 Star Bulletin. “Take care in protecting reporters from revealing sources”
4 Fernandez, Elizabeth. “Slew of journalists under legal siege for not revealing sources” Abrams said. "A time will inevitably come when some of the best and most
important journalism will be blunted and ultimately stopped.''
It is even harder to decide what the journalist should do—reveal their source or withhold
their identity—if the deal was made in confidence between the journalist and the informant. The
police may be the ones asking in a case where information is vital to the safety of people. So, if
the journalist was you, do you give them the ‘secret’ info, or honour the deal you made with your
informant? This is a contentious issue in regard to ethics in journalism.
“At stake, is the ability of journalists to fully inform readers, viewers and listeners about
government and [various] institutions.” (Fernandez) 6
The stakes are high and could be tremendously costly for the public. "If we don't allow
confidential sources, then some of the most important [stories] won't be written.'' (Scheer, in
Fernandez) There may very well come a day in which journalists cannot guarantee any level of
secrecy, and thus will never be trusted by people who have valuable information and compelling
stories to share. This means that news stories and the effectiveness of journalists to act as
societal watchdogs will suffer; and stories will suffer originality. In the end, it would create a gap
between the public and the elite as secrets will not be revealed, and, of course, it would mean a
great(er) suffering among newspaper readership.
“[Justice Benotto, a judge, following a case where revealing a journalists’ source was
fundamental,] described confidential sources as the ‘essential functioning of the media in a free
and democratic society.” (Jobb, 308) 8
Judith Miller is a reporter who was asked to breach her sources confidence. She did not,
claiming “If journalists cannot be trusted to guarantee confidentiality, then journalists cannot
function and there cannot be a free press.” (Liptak) 9
“If the confidentiality of sources were not respected as a matter of principle this would
inhibit the free flow of information which is essential to the vitality of a democratic society.”
Journalists need a shield law to protect their confidential sources and ensure the
free flow of information. That's the conclusion of Diana Ginsberg, a graduate student
in media law at London's City University who examined how courts in Canada and
5 Fernandez, Elizabeth. “Slew of journalists under legal siege for not revealing sources”
6 Fernandez, Elizabeth. “Slew of journalists under legal siege for not revealing sources”
7 Peter Scheer, executive director of the California First Amendment Coalition in Fernandez, Elizabeth.
“Slew of journalists under legal siege for not revealing sources”
8 Jobb, Dean. “Media Law for Canadian Journalists”
9 Liptak, Adam. “Reporter jailed after...”
10 unknown author. “Journalistic Standards and Practices” Britain deal with attempts to expose media sources. While finding no conclusive
proof sources will dry up without a shield law, she argues that formal legal protection
is better than "the courts simply asserting that it must be relevant and necessary for
a journalist to disclose." 11
So, what happens then in such a case? Either a journalist reveals their source or they
can take the hit themselves, resulting in a charge of contempt of court (obstruction of justice) “’If
an instance arises where a reporter feels a personal, moral obligation to go to jail rather than
betray their sources, so be it,’ notes a Senate report.” (Jobb)
In addition to Judith Miller, another example of a journalist being willing to take the wrath
for their informant was “The Shawnigate Scandal”. However, this story takes place in the
country of Canada (when the Miller story is from the United States). The result was
groundbreaking in Canada for the topic of journalist’s relationship with their sources.
Questions were raised about then Prime Minister, Jean Chretien, and government
A ‘brown envelope’ was dropped on the desk of Andrew McIntosh implicating
Chretien in documents (with some degree of corruption).
Bank officials claimed the documents to be a forgery, and the RCMP were called.
The Mounties requested a seizure of the document.
McIntosh learned (after-the-fact) that it was from a source he promised to protect.
McIntosh’s paper, The Globe and Mail, challenged the seizure on legal grounds,
claiming that “Forcing journalists to expose their sources deters people from coming
forward with information and hinders the media’s ability to inform the public . . .
Stories of intense public importance could go unexposed and unreported.” (Jobb
“Benotto quashed the warrant, and recognized for the first time in Canada, that
journalists have a legal right— entrenched in the constitutions’ guarantee of freedom
of the press— to protect the identities of sources in certain cases.” (Jobb 308) 14
She described confidential sources as the “essential functioning of the media in a
free and democratic society.”
This gives the journalists some additional freedoms than the average person.
11 Jobb, Dean. “Canadian Shield Law Needed”.
12 Jobb, Dean. “Media Law for Canadian Journalists”
13 Jobb, Dean. “Media Law for Canadian Journalists”
14 Jobb, Dean. “Media Law for Canadian Journalists” So, even with this ‘additional freedom’, does a journalist have to give up their source?
Sometimes, is the only appropriate answer. Ultimately, the question is, can a journalist
guarantee secrecy. And In short, the answer is no, not completely. As stated before (with
additional info to follow),
Journalists may one day face the grim choice of breaking their word or breaking the
law. By the 1980s, Stuart Robertson, was claiming that the highest hope of a journalist
is that the courts will recognize his or her right not to disclose of information (Jobb 309)
“[Despite such,] journalists have a legal right— entrenched in the constitutions’
guarantee of freedom of the press— to protect the identities of sources in certain cases.” (Jobb
308) Though journalists do have additional rights than the average person when being
subpoenaed to testify before the courts, it is a contes