By ruling that journalists can be sued for breaking a verbal agreement to keep the identity of a news source confidential, the U.S. Supreme Court has put the press in an impossible situation.
But the biggest loser is not the press but the public, which can easily be deprived by this week's 5-4 decision of information needed to make intelligent decisions.The ruling came in a Minnesota case in which reporters agreed to conceal the source of an attack on the Democratic candidate for lieutenant governor in 1982 but the reporters' editors overruled them on the grounds that voters were entitled to know that the attack came from the camp of the opposing candidate.
The Supreme Court's decision drives a wedge between journalists and their news sources - a wedge that can have serious consequences.
In some cases, reporters can be jailed for refusing a court order to identify their news sources. In such circumstances, the new ruling means the press can be penalized regardless of what it does about identifying a confidential source.
This dilemma is bound to deprive the public of important information by making the press more reluctant to talk to news sources who may legitimately need to remain anonymous in order to avoid reprisals.
Yet confidential informants are often the source of major disclosures about wrongdoing in high places and other types of scandals. To get such information, reporters sometimes must promise confidentiality before the potential informant will tell them even the nature of their information.
Besides drying up such news sources, the Supreme Court's ruling has a number of other complicating side effects. It could mean less freedom for reporters and more editorial practices that require clearance from editors before entering into confidentiality agreements. It could mean signed waivers from news sources.
Likewise, it could mean laws on confidentiality that vary from state to state as different legislatures react to this week's Supreme Court ruling.
And it could mean a flood of lawsuits. If the press can be sued for failing to withhold the name of a news source, what's next? Suits for not letting the source review the resulting article before publication? Suits complaining that the article is not as favorable as the source thought it should be?
No, those are not imaginary threats. Some of these very complaints already have been filed in various courts.
The lesson should be clear: Decisions on what to publish or not publish are better left to editors than to judges.