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Chapter 10: Protection of News Source/Contempt Power
Chapter 10
Protection of News Sources/Contempt Power
This chapter focuses on both constitutional and statutory protection of news sources and
journalistic materials, and the law relating to contempt. It also addresses the legal liability
journalists may face when they breach their promises of confidentiality to their anonymous
sources and a legal cause of action called promissory estoppel, which provides a remedy for
sources in such situations. Additionally, the chapter includes a small section on newsrooms
searches and subpoenas served to journalists by law enforcement officials.
What’s New and Topical in This Chapter?
Two concerns about a source–reporter privilege (be it in the form of a statutory state “shield law”
or a First Amendment-based privilege recognized by the courts) remain on the front burner of
discussions of media law these days: the protection of confidential sources’ identities and the
prevention of the disclosure of confidential information to the government. As of early 2017, 39
states and the District of Columbia adopted shield laws. However, there was no federal shield
law to protect reporters in federal court and federal grand jury proceedings.
Some of the new material in Chapter 10 for the twentieth edition of the textbook are as follows:
1. Discussion of the appellate court decision in United States v. Sterling, which was the
criminal espionage case involving the federal government’s subpoenaing of New York
Times reporter James Risen
2. Updated discussion of Convertino v. United States Department of Justice, where an
appellate court ruling seemed to give journalists another weapon—the Fifth Amendment—
to protect confidentiality of one’s sources in certain situations
3. A new gray-shaded textbox highlighting an October 2016 appellate court decision in
People v. Juárez that interpreted New York’s shield law as protecting a New York Times
reporter from testifying at trial and providing her notes for in-camera review
4. A new section addressing the Department of Justice’s revised guidelines for when and how
a federal prosecuting attorney can subpoena a reporter
5. The unit called “Anonymity and the Internet,” which previously appeared in this chapter,
has now been moved to Chapter 4. It fits more neatly there.
What about the Law of Contempt?
This section has been substantially shortened over the past few editions of the book, but what
remains is still vital for students to understand.
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Chapter 10: Protection of News Source/Contempt Power
Problem Questions
1. Several months ago authorities at the Weaver Nuclear Reservation in Wyoming issued a
brief press release about a shooting and arrest on the reservation. The release said the
following:
“Security officers at the Weaver Reservation last night shot and killed an armed intruder
who was attempting to damage important equipment in one of the nuclear reactor
buildings. Officers reported that Jacob Maine, 33, of San Lucas, Calif., was shot when he
fired a pistol at a security officer who was attempting to apprehend him. Three other
persons were arrested about 400 yards from the reactor building where they were caught
attempting to damage vehicles owned by the government and used on the reservation.”
The names of the three persons were listed. The three were later indicted on felony charges
of destruction and attempted destruction of government property and criminal trespass.
The day before the three defendants were to go on trial in federal court, the Cheyenne
Sentinel published a story that suggested the authorities were lying about the death of
Jacob Maine. Reporter Luis Montez wrote that he had been contacted by an individual who
claimed that he was with Maine when he was shot. The unidentified source told Montez
that Maine was not armed when he was confronted by police but was shot while he was
attempting to flee.
The following day prosecuting attorney Hamilton Burger issued a subpoena to reporter
Montez, demanding that he testify in court regarding the story. Burger said the name of the
unidentified source was critical in the case. He said he personally believed the report was a
hoax to try to win sympathy for the three criminal defendants and that he hoped to prove
this by confronting Montez on the witness stand. Montez announced that he would not
appear at the trial and that he would ignore the subpoena. He said he had promised to not
reveal the identity of his source for the story. He claimed that despite the fact that there is
no shield law in Wyoming, he was protected by the First Amendment.
a. Is there a First Amendment protection that might protect Montez in this case?
b. What must the government prove before Montez can be forced to testify?
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Chapter 10: Protection of News Source/Contempt Power
Answer: It must first be noted that Montez is being asked to testify in a criminal
case. Normally in such cases, a reporter can only be forced to testify if the person
c. Will Montez be required to testify?
Answer: If the story is true, Montez has important information. But is this
point, it is doubtful that Montez would be forced to testify.
2. Oscar Madison is a mid-level manager at Henderson Aircraft Company, the manufacturer
of a new super-sophisticated military helicopter that has been in development since the
early 2000s. But the project has been plagued with problems. After the first twelve
helicopters were delivered to the U.S. Army, two crashed. The remaining ten were
grounded until it could be determined what caused the crashes. This was not the first
instance when a mechanical or design flaw interfered with the deployment of these aircraft.
Henderson Aircraft is located in Big Bend, Kansas. It employs nearly 4,700 workers, and it
is the largest employer in Big Bend and the surrounding region.
Three days after the helicopters were grounded, Sean O’Grady, a reporter for the Big Bend
Bulletin, received a call from Madison who said he wanted to talk with the reporter. At the
clandestine meeting, Madison told O’Grady that he would tell him what was wrong with
the new helicopters in exchange for a promise of source confidentiality from the reporter.
Madison said that he was a loyal employee of Henderson Aircraft and that this helicopter
seemed to have one problem after another. “Someday soon,” Madison said, “a pilot is
going to be killed.” Madison said that his 23-year-old son was a U.S. Army helicopter pilot
and he feared that he might one day end up flying one of these defective aircraft. After
O’Grady agreed to protect Madison’s identity, Madison revealed that the problem in the
aircraft was a substandard rotor blade. Madison said that the company bought the blades on
the sly from an unlicensed and disreputable manufacturer in Mexico who used cheaper
metal in fabricating the rotor blades. Henderson Aircraft was trying to save money by
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Chapter 10: Protection of News Source/Contempt Power
buying the cheaper blades because the development costs for the helicopter were higher
than they expected.
O’Grady told his editor about Madison’s allegations, and he was assigned to write the story
as the next day’s lead story in the Bulletin. Late in the day, Bulletin publisher Kate Jackson
heard about the story, and she immediately ordered the editor to kill it. “Henderson
Aircraft will be seriously harmed by the story,” she said, “and the company is too
important to the local economy.” “A story like this will anger Henderson Aircraft, its
employees, and many readers who rely on the Henderson payroll to keep their own
businesses going,” Jackson said. The editor and O’Grady protested. After much discussion,
Jackson finally agreed to publish a modified version of O’Grady’s story. However, she
insisted that the source of the allegations about the rotor blades be named in the story. She
said that O’Grady must also point out that Oscar Madison is only a mid-level manager at
Henderson, someone who might not really understand what is going on. Jackson said that
she believed this would lower the credibility of the news report and make it much easier
for Henderson to deny the allegations. Faced with the choice of either printing no story or
using the name of the source, O’Grady agreed to print the name of the source in the story.
Following the publication of the story, a spokesperson at Henderson denied that there was
any problem with the rotor blades. A week later, the company fired Oscar Madison
ostensibly because of an unfavorable annual evaluation. Madison, who has a large
mortgage, two children in college, and other financial obligations, sued the Bulletin for
revealing his name after he was promised that his name would not be revealed.
a. What kind of a lawsuit would Madison likely file?
b. What will Madison have to prove to the court in order to win his case?
Answer: First, he will have to prove that O’Grady made a clear and definite promise
c. Is it likely for Madison to win such a case?
Answer: Assuming that the law is applied as it was in the Cohen v. Cowles Media,
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Chapter 10: Protection of News Source/Contempt Power
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Inc. ruling, Madison is likely to win the case. O’Grady clearly made the promise to
get the story, and Madison lost his job because his name was revealed in the story.