Not since the Watergate era has the...

Not since the Watergate era has the media’s use of confidential sources been so heatedly debated as it is today. Unfortunately, several recent decisions by judges outside California suggest the lessons of that era have been forgotten. Chief among them is the reminder of how an independent press can and must serve as a check on government power.

In 1973, the Washington Post, relying on information obtained from a confidential source, exposed criminal conduct by people at government’s highest levels, resulting in the resignation of the president. It is less widely known that Post reporters Bob Woodward and Carl Bernstein were subpoenaed that year by individuals demanding they identify “Deep Throat” and produce all the information they had gathered about the break-in at the Watergate Hotel.

Woodward and Bernstein refused, citing the need to protect their confidential source. A federal district judge agreed.

In the three decades since Watergate, countless investigative reporters have confidentially received information that led to stories on government corruption, corporate misconduct and other wrongdoing that the public needed to and was entitled to know. It is no coincidence that during this period, virtually every state and most federal courts recognized some form of protection for reporters’ confidential-source information; some states, like California, even made the protections part of their constitutions.

This confluence makes sense. People who know about illegal or improper actions, particularly by the rich and powerful, often have good reasons not to come forward. If these individuals cannot be assured by reporters that their identities will remain confidential, they will not speak out -- and vital information will not be publicly revealed.

The public interest served by protecting these kinds of communications often seems lost in the recent spate of prosecutions and civil suits over government “leaks.” The fallacy frequently espoused by prosecutors (and self-interested plaintiffs’ lawyers) is that society’s most compelling interest is to prosecute people who break the law. Under this theory, journalists should be forced to reveal the identity of confidential sources any time a source violates the law by revealing information to a reporter.

Yet our society has decided, in a wide variety of circumstances, that the need to protect certain communications outweighs the need to prosecute criminals -- and may even outweigh the rights of a criminal defendant to defend himself.

For example, it is well established that conversations between an attorney and client are confidential. The rationale is that someone who needs legal advice should be able to speak with his lawyer without fear that the information he discloses will be used against him. Clearly it would be helpful to a prosecutor to know what a criminal defendant tells his attorney, yet the public interest in prosecuting crimes does not allow the confidentiality of their conversations to be breached. Indeed, the U.S. Supreme Court has held that the protection for communications between an attorney and client is so important that it continues even after the client has died.

Conversations between patients and doctors (including psychotherapists), between spouses and between penitents and clergy are similarly protected. As to each, there unquestionably are cases in which a criminal prosecution would be easier, or a civil litigant would have a greater chance of success, if such information were forcibly disclosed. But as a society, we recognize that the greater public good results from a rule that steadfastly protects these communications and relationships.

There are additional costs to society of allowing reporters to become targets of civil litigants or overzealous prosecutors. Given the opportunity, parties to a dispute always will seek out the journalist as witness: Reporters are trained to thoroughly investigate, they may have sources of information not widely available, and they are perceived as “neutral.” The most immediate societal “cost” is that the reporter no longer is able to do his or her job. Even apart from the time and energy required of a witness, the reporter’s ability to continue working credibly on a story is compromised when he or she suddenly becomes a witness for a side in the story. The significance of this problem is reflected in statistics gathered by the Reporters’ Committee for Freedom of the Press: The number of subpoenas directed to news organizations in the last few years has skyrocketed.

People anxious about reporters’ ability to control access to information by promising confidentiality to their sources completely misapprehend the fundamental nature of journalism. Reporters are in the business of disclosing -- not hiding -- information. They have a strong disincentive to promise to keep information secret because such promises not only affect what information may be reported, they also can constrain future reporting. Further, depending on the nature of the story, a reporter may face the risk of a lawsuit, in which entirely different rules apply to confidential relationships. In short, the risk that reporters will simply promise confidentiality to every source of information is unrealistic.

In contrast, the risk that reporters will be stymied from obtaining some critically important information if they cannot protect the identity of their sources is virtually guaranteed.

The choice seems obvious.