Court says press source may sue for using name

June 25, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A news reporter's promise to keep secret the identity of a source for a story can be legally binding, and the reporter and news organization may be sued for breaking such a promise, the Supreme Court ruled 5-4 yesterday.

The Constitution, the court majority declared, allows the states to give individuals or firms the right to sue for broken promises and it does not give the press any special protection from the duty to keep promises.

So long as state law permitting damage lawsuits for broken agreements does not single out the press as a target, the court said in an opinion by Justice Byron R. White, the First Amendment's free press clause does not insulate news organizations or their staffs when they get sued under such a law.

Since every state has some version of law allowing damage lawsuits for "breach of contract" or a similar claim for a violated promise, the ruling appears to raise the prospects of many lawsuits against the press when dealings with sources break down in misunderstanding or outright broken promises.

Bruce Sanford, a Washington lawyer for the media and general counsel of the Society of Professional Journalists, said that "anyone can easily see the possibility for troublemaking" as a result of the decision. He said it made him wonder whether sources will now feel free to "cause trouble" over what had been agreed would be published or not, whether something said was to be treated as "off the record" or not, and whether a resulting story was complete or not.

In recent years, reporters have been ordered increasingly by courts to identify their sources when the identity would be key evidence in a criminal or civil case. If a reporter obeyed such an order, the source probably would not be able to sue for damages, since the pledge of secrecy there very likely would be treated as unenforceable because it would conflict with the "public policy" behind the court order.

The press had urged the court in a case from Minnesota (Cohen vs. Cowles Media, No. 90-634) to rule that, since a decision for or against publishing the name of a source was an editorial choice, the First Amendment should protect it.

Flatly rejecting that plea, the court ruled that the First Amendment does not apply at all. "Minnesota law," Justice White wrote, "simply requires those making promises to keep them."

Moreover, the opinion added, the press makes its own deals with sources, so any restriction on what may be published is "self-imposed."

If making promises of confidentiality legally enforceable works to "inhibit truthful reporting" because it may keep some newsworthy names out of print, that will be only an "incidental, and constitutionally insignificant, consequence" of requiring the press to obey the legal rules that others must obey, the majority declared.

The Minnesota Supreme Court had wiped out a $200,000 damage verdict against two newspapers in the state for publishing -- after reporters promised not to do so -- the identity of a source for a story about a political campaign "dirty trick."

The state court, while saying that the press might sometime be subject to lawsuit if it made a promise upon which someone else had relied, ruled that such a lawsuit could not go forward when the broken promise involved news about a political campaign. That kind of news, it said, gets special protection under the First Amendment.

Although the Supreme Court overturned that ruling, it did not reinstate the $200,000 verdict. Rather, it sent the case back to state court to reconsider.

Joining Justice White in the majority were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia and John Paul Stevens. Dissenting were Justices Harry A. Blackmun, Thurgood Marshall, Sandra Day O'Connor and David H. Souter.

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