On the Importance of Keeping Confidential Sources Confidential

As a national trade association, AAN tends not to wade into purely local matters. Instead we generally look to get the most bang for our advocacy buck, weighing in on federal legislation and joining amicus briefs in cases which are likely to have widespread application. That generally means we only join amicus briefs in cases that have gotten to at least the United States Court of Appeals or State Supreme Court level or higher because those decisions have larger geographic reach and/or are more likely to influence other courts. There are exceptions to this rule. If one of our members were in a legal fight and we’d have an influence then, yeah, we’d weigh in. Or if the issue in question is something that’s truly near and dear to our core mission. Or, if the lower court decision was so incredibly awful, we just can’t stand for it.

Those last two are in play in Illinois v. McKee, where Patch.com reporter Joseph Hosey is appealing an order imposed by an Illinois trial court requiring Hosey to identify the source of a police record that was given to him and which related to a pending murder trial. Hosey had invoked the Illinois reporters shield law but the trial court held that the government met its burden under the law because of the relevance of the information and because alternative sources had been exhausted.

AAN and 38 other media organizations and companies, in an amicus brief filed with the Illinois Court of Appeals, disagree.

Our brief contains three main sections. The first talks about the importance of crime reporting to the public interest. Accurate crime reporting serves both an education function and a deterrent function. But to report on crime effectively, reporters need access to both law enforcement documents and sources. The brief does an excellent job of pulling together examples of local crime reporting that effected change in the local community.

This first section also explains how Joseph Hosey’s rights, in particular, require significant protection because he is trying to protect the identity of a source who provided public information of intense public interest. The lower court’s order forcing the reporter to testify isn’t material to whether the defendants committed the murders in question; rather it relates to the judge’s own concerns regarding the source of a leaked police report. So we have a somewhat rogue judge using a reporter to facilitate his fishing expedition into the source of leaked documents that are ancillary to the actual case at hand. That just can’t happen. In fact, the court really shouldn’t have started this investigation to begin with (that’s better left to the state’s attorney) and it shouldn’t be relying on reporters to further the investigation now. The judge really shouldn’t have done this without taking into account the public’s interest or reporter’s free speech rights in applying the privilege, an especially egregious oversight given the State of Illinois’ commitment to the First Amendment rights of journalists and the public in overseeing trials.

The second section of the brief discusses the important role anonymous sources play in crime reporting and other reporting. This section provides a long list of examples where anonymous sources have provided information for stories which are clearly in the public interest and led to the public’s betterment and an explanation as to what might happen if the reporter’s privilege ceases to exist from the Pentagon Papers to the Bobby Baker affair to Thalidomide to the My Lai Massacre, as well as any hundreds of scandals involving state and local government. As this section notes: “The importance of keeping confidential sources confidential cannot be understated.”

Finally, the brief reviews the history of the Illinois Reporter’s Privilege and addresses the impact on that privilege if the lower court ruling is allowed to stand. It looks at the facts of this case and argues that overcoming the privilege in this case effectively opens the door to overcoming the privilege in any future case.

Please feel free to contact AAN Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg[at]fhhlaw.com if you have questions about this brief or any of AAN’s legal affairs.

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