Confidential News Sources:
What Minnesota Lawyers and Clients Should Know

By Steven P. Aggergaard

Not since Watergate has there been such a stir over confidentiality agreements between news reporters and their sources.  In Washington, inquiries over who leaked what to whom led to a New York Times reporter’s incarceration and resignation, and eventually to the vice president’s chief of staff being indicted.

But confidential sources do not exist only in Washington.  Nearly every working day, reporters in Minnesota are asking persons in business and government to provide information “off the record” or under some other cloak of confidentiality.  Occasionally these reporters seek a scoop, but more often the reporters grant confidentiality with hopes that the information will lead to another source who will go “on the record.”  Sometimes, reporters call a confidential (and knowledgeable) source just to run a story by him or her to ensure accuracy.

Amid this landscape, lawyers as well as the clients they serve should know a bit about how reporters operate, how state and federal laws protect and sometimes do not protect reporter-source agreements, and what remedies are available should a news organization break its promise.

REPORTERS’ JOBS

Journalists, like lawyers and their clients, use terms of art.  Lawyers and their clients, like journalists, should clarify in their own words what those terms mean — particularly when dealing with a specific reporter for the first time.

There is little disagreement about what “on the record” means.  When an interview is conducted on the record, both the journalist and the source understand that the material provided will be published or broadcast, and that the source will be identified by name.  Some reporters explain this arrangement to persons unaccustomed to media interviews, but neither lawyers nor their clients in business and government should expect this.

Some interviews are, of course, conducted “off the record.”  But this term of art risks being misunderstood.  To some but not all reporters, material obtained off the record may be published or broadcast, but the person who provides it may not be identified in any way as being a source.  Reporters often seek the same information from someone else who is willing to go on the record.  Do not assume that a reporter will agree to never publish or broadcast certain information.

A reporter might seek information on a “not for attribution” basis.  This generally means that the information may be published but that the source will not be identified by name.  It is vitally important that the source clarify what “not for attribution” means.  It is possible that a reporter will believe that information obtained not for attribution still may be attributed in some way, such as to a “senior official” or a “manager in the company.”  The source should clarify.

Some reporters seek information “on background.”  In Washington, this term is synonymous with “not for attribution.”  Outside the Beltway, it might mean something else.  Again, clarify.

To ensure accuracy, a good reporter sometimes reads portions of a story or script to a source whom the reporter has no intention of identifying.  This is to be encouraged because it signals that the reporter’s ultimate goal is to get the story right.  Still, the source should clarify terms of the arrangement and should not expect that the reporter will agree to publish information only on condition that the source agrees to its final form.

All news sources should be aware that editors, not reporters, ultimately decide whether to publish or broadcast a story that contains information from confidential sources.  Generally, reporters must reveal a confidential source’s identity to their immediate supervisors and other editors up the chain of command. 

The Rules

Offers involving confidentiality, whether initiated by the reporter or the source, generally are legally enforceable upon acceptance.  Lurking in the background, however, are federal and state constitutional provisions ensuring freedom of the press.1

In Minnesota, this interplay between contract and constitutional law has produced a “shield law” that generally protects the confidential relationship between sources and journalists.  Under the Minnesota Free Flow of Information Act, journalists “directly engaged” in procuring news usually cannot be forced to disclose their sources’ identities, unpublished information, or notes before courts and other government bodies.2

But the shield is not impregnable.  Anyone may ask a district judge to compel a reporter’s testimony before a state court or other government body if the information is “clearly relevant” to a crime, “cannot be obtained by alternative means or remedies less destructive of first amendment rights,” and involves a “compelling and overriding” public interest.3

In addition, the state shield law does not apply in “any defamation action” when a source’s identity will lead to relevant evidence of “actual malice,”4 i.e., whether the alleged defamer knew the information was false or recklessly disregarded the truth or falsity. In 2003, the Minnesota Supreme Court held that the defamation exception clearly means what it says — the shield evaporates in “any” action, regardless of whether the reporter or news organization is a party.5  Accordingly, confidential sources should take great care in providing potentially defamatory information.

Minnesota’s shield law applies only in state courts and similar tribunals.  In federal court, less-protective federal law applies.  There is no federal shield law, and recent efforts to pass one are far from certain.  The federal courts of appeals do not agree whether a 1st Amendment privilege might protect reporter-source agreements under certain circumstances.6

The law is especially unclear in Minnesota’s federal courts.  In 1995, District Judge Ann Montgomery referenced a general federal privilege against “compelled disclosure of information gathered in the news making process,” and observed that the privilege gives way when the information sought is “critical” to maintaining the “heart of the claim,” is highly material and relevant, and cannot be obtained from other sources.7 But two years later, in a case involving attorney-client privileges related to an investigation of Bill and Hillary Clinton’s business dealings, the 8th Circuit Court of Appeals noted that the question of a reporter’s privilege “is an open one in this Circuit.”8

THE REMEDIES

Unless and until recent controversies over confidential sources reach the United States Supreme Court, Minnesota holds the distinction of providing the leading case on remedies available when journalists renege on a confidentiality promise.

In Cohen v. Cowles Media,9 a source requested and received confidentiality before providing damaging information about a Minnesota gubernatorial candidate.  The source, Dan Cohen, sued the Minneapolis and St. Paul newspapers after editors decided that his identity was newsworthy.  Cohen sued over the breached agreement.  Ultimately, the United States Supreme Court held that the 1st Amendment did not prevent Minnesota from using its laws to punish newspapers that break promises.  Cohen was awarded $200,000 in damages.10

The 1991 case has been cited for the general proposition that journalists have no license to break generally applicable laws, including laws governing agreements.  For example, the 8th Circuit relied on Cohen while permitting a Minnesota lawsuit against Glamour magazine to go forward amid allegations that the magazine had breached its agreement not to identify a Minnesota sexual abuse victim.11

CONCLUSION

Reporters seek confidential sources in government and business all the time.  Before agreeing to be a confidential source, Minnesota lawyers as well as their clients should confirm terms of the agreement in their own words.  In addition, would-be confidential sources should understand that confidentially might not be maintained under some circumstances.  If a breach occurs, state and federal laws might permit an aggrieved source to recover damages. c

NOTES
1. Apart from the 1st Amendment to the United States Constitution, Article I, Section 3 of the Minnesota Constitution states that “[t]he liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right.”

2. Minn. Stat. §595.023.

3. Minn. Stat. §595.024.

4. Minn. Stat. §595.025.

5. Weinberger v. Maplewood Review, 668 N.W.2d 667, 672 n.7 (Minn. 2003).

6. Compare In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (rejecting privilege) with Shoen v. Shoen, 5 F.3d 1289, 1292, 1292 n. 5 (9th Cir. 1993) (finding privilege and citing other circuits for support).

7. J.J.C. v. Fridell, 165 F.R.D. 513, 515-16 (D. Minn. 1954).

8. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 n.8 (8th Cir. 1997).

9. 501 U.S. 663 (1991).

10. Cohen v. Cowles Media Co., 479 N.W.2d 387, 388 (Minn. 1992).

11. Ruzicka v. Conde Nast Publs., 999 F.2d 1319, 1323 (8th Cir. 1993).

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STEVEN P. AGGERGAARD is an associate at Rider Bennett, LLP in Minneapolis.  He was a newspaper editor and reporter for 15 years, most recently with the St. Paul Pioneer Press.  He holds a master’s degree in journalism from Northwestern University.