I published an article in the school paper about LGBTQ students and kept my source confidential. The school wants me to reveal the name of my source. Do I have to?
As a general rule, journalists have the right to keep their sources confidential, which is referred to as reporter’s privilege. Many states have specific shield laws to protect this right. In states that do not have specific laws, they often recognize reporter’s privilege in state court decisions. Since every state is different, it’s important to check your state’s laws to see if they recognize the privilege and what circumstances apply.
For example, in Florida, the reporter shield law only applies to professional journalists, so student journalists would not be protected. But the Michigan shield law protects any journalist engaged in gathering news.
These laws might also only apply to certain situations. For example, in Michigan, journalists only have to reveal their confidential sources if they relate to a crime punishable by life in prison and there is no other way to get the information. However, in most other states, the government can force journalists to reveal a source’s identity if it’s necessary to prevent some sort of imminent harm.
In our situation, the school probably doesn’t have enough of a reason to force you, as a student journalist, to reveal the student’s identity. Keeping the student’s name secret isn’t creating an imminent threat of crime or harm to anyone. Sure, the school has an interest in protecting the student, but if he’s already anonymous, he’s arguably safer than if you reveal his identity (even if it’s just to the school administration). No one can target the student if no one knows who he is.
If the school knows about a direct threat to any students or incidents that have already happened, the school can step in to protect them. They wouldn’t need to know the identity of the student in the interview to do this. There are also other ways the school could figure out who the student is. They could interview students or offer counseling services that specialize in LGBTQ questions.
The other major concern is that if you reveal the student’s identity without his permission, you could be invading his right to privacy.
Privacy is a big deal. Although it may seem like a big leap, if you disclose the student’s name after you promised him confidentiality, he may be able to take legal action on the grounds that you, as a journalist, violated his right to privacy by publicly disclosing a private fact.
A person can sue for the public disclosure of private facts if:
1. The fact is published to a fairly wide audience;
2. The fact is about the individual who is suing;
3. The fact, if revealed, would be highly offensive to a reasonable person; and
4. There is no legitimate public concern about the issue.
So what does that really mean? Let’s break it down by factor for our situation.
1. What constitutes a fairly wide audience?
Let’s back up for a second. When the student gave the interview, he had what’s called a reasonable expectation of privacy regarding his sexual identity. In other words, he expected that his name, and by extension his sexuality, would remain separate (private) from the interview content.
But the factor required a “fairly wide audience.” The principal may be the big guy in charge, but that doesn’t mean he fits the bill of a “fairly wide audience.” So while telling one administrator about the student might not be enough to allow the student to successfully sue, if the information became more widespread (for instance, it’s published in the paper or gets around the school), then the student’s privacy will have been breached.
2. We’ve already established that the fact would be about the student. It’s his sexuality.
3. Revealing a person’s sexual orientation is a very private matter, but is it really offensive?
Depending on someone’s beliefs and attitudes, this disclosure can range from extremely offensive to not offensive at all. So context is key. In this case, we would need to ask whether an ordinary person, exhibiting the general beliefs of the community in which the disclosure takes place (the school), would take offense to the disclosure of the student’s sexuality. The law recognizes that complete privacy in today’s society is close to impossible, so the “offensiveness” element helps courts determine which disclosures are particularly harmful in certain contexts.
4. Finally, although the school will argue that they need to protect the student from harassment, revealing the identity of the gay student isn’t really an issue of public concern.
The general public isn’t interested in the sexuality of a particular local high school student, so as a journalist, there would be no foundation in the public concern that would justify disclosing that information.
Realistically the student probably wouldn’t sue you for giving his name to the principal. But, if you disclosed his name, know that you would be violating his right to privacy. And even though it is still high school, it’s not a good journalistic or ethical move to disclose your source’s name after you promised confidentiality about his private facts.
And another thing . . .
One more concern is that the student could claim that revealing his identity is a breach of contract (always with the contracts!). Even if you didn’t have the student sign anything that says he would give the interview as long as you keep his identity secret, your promise to keep his interview confidential constitutes a contract. That’s right, even something so simple as a verbal promise can be enforceable by law.
Not only that, but it is a violation of journalism ethics to go back on your word and break confidentiality. The reason you promise to keep sources a secret is to build trust with them so you can publish stories that can get to the truth without fear of punishment. If you can’t keep your promises, no source will be able to trust that they can talk to you. So even if the school threatens to suspend you or impose some other punishment for refusing to reveal sources, keep in mind that as a journalist, you might have other ethical obligations.
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