The use of anonymous sources in journalism has always been a controversial but widespread practice. News consumers don’t like them because they are deprived of knowing who is making that statement, claim or charge. Journalists don’t like them either but view them as a necessity, particularly in matters of national security when sources are loath to go on the record.
Most news organizations publicly state that anonymity is a last resort, but once that status has been granted, it is almost always binding. The NPR Ethics Handbook states:
As an ethical matter, we would not want to reveal the identity of an anonymous source unless that person has consented to the disclosure. That’s why we take the granting of anonymity seriously.
Here’s the problem: Journalists can be compelled by a court to reveal a source’s identity because there is no national shield law granting them an exemption from testifying. If they refuse, they can face prison time or fines.
Back in 2005, New York Times reporter Judith Miller refused to identify a source naming Valerie Plame as a CIA operative. She was held in civil contempt and spent 85 days in jail, while another reporter on that story, Matthew Cooper, was spared jail time when his anonymous source, White House political adviser Karl Rove, released him from his promise of confidentiality. Miller got out of jail only when her source, Dick Cheney’s Chief of Staff, I. Lewis “Scooter” Libby, granted her permission to testify.
A more recent example of journalists disclosing the name of a confidential source took place earlier this month when President Donald Trump was treated for COVID-19 at Walter Reed Medical Center. The day after he was admitted, the president’s team of doctors evaded questions and gave a rosy outlook on the president’s condition. But moments later, someone described by the traveling press pool as “a source familiar with the president’s health” contradicted the doctors and said: “The president’s vitals over the last 24 hours were very concerning and the next 48 hours will be critical in terms of his care. We’re still not on a clear path to a full recovery.”
The pool reporters at Walter Reed agreed to quote this source on background, but reporters at the Associated Press and the New York Times, who were not in the pool, figured out it was White House Chief of Staff Mark Meadows and attributed the quote to him without his permission. The Politico story about this incident says the AP and Times reporters were able to verify it was, indeed, Meadows based on their knowledge of events, noting “footage quickly surfaced showing Meadows pulling the reporters to the side, asking to speak “off the record with some of y’all” for a minute.”
We don’t know exactly what was behind this highly unusual decision to reveal Meadow’s name without his permission, but my bet is that these news outlets believed that disclosing his identity was a matter of national interest and that under the circumstances, the public deserved to know who made that alarming statement about the president’s health.
As far as penalties, reporters who renege on promises of confidentiality may find themselves in legal jeopardy. The NPR Ethics Handbook spells this out:
If we have promised confidentiality to a source but disclose the source’s identity, we could be liable for breach of contract. In Cohen v. Cowles Media, the Supreme Court held that the First Amendment does not protect the press from breach of contract lawsuits when a reporter breaches a promise of confidentiality.
It is therefore possible that if a journalist makes a promise of confidentiality but is later compelled to testify, s/he may either be jailed or ordered to pay money damages. Neither is a good situation. So consult with your supervisor and our legal team before you make a promise of confidentiality. Discuss whether the promise is necessary, what the exact scope of confidentiality will be, under what conditions the source might be willing to release you from the promise, and what the potential risks to you or NPR might be. We want to be sure we can keep whatever promises we make.
So the stakes could not be higher. When a reporter uses an anonymous source, the reputations of both the reporter and the news outlet are on the line, making it a decision that should be made with the utmost care and due diligence.