No Help for Globe, Journalists from U.S. Supreme Court

Our dear old Supreme Judicial Court, whose decisions so frequently bring ire to Americans outside the Commonwealth borders (and, to a lesser degree, to those within it), won a little victory yesterday, much to the chagrin of journalists everywhere. The U.S. Supreme Court declined to take an appeal from the SJC by the Boston Globe, after the paper lost a libel suit and had to pay $1.68 million to a doctor implicated in the death of a Globe columnist due to a medication overdose. (The reporter in the case had to pay $420,000.) The paper had initially run a story indicating that the doctor, Lois Ayash, signed off on the lethal dosage, and later ran a retraction.

What's interesting about this case, from a legal and journalistic standpoint, is the underlying issue about the confidentiality of journalists' sources. Usually in libel cases, the person claiming to have been wronged by some publication has to come into court and prove that she was wronged. That is, she has to show that the reporter or the newspaper either knowingly printed a falsehood or was very very careless about the truth of what was printed. But here, the Globe (and its reporter, Richard Knox) lost by default, which is to say, there was never a full and proper trial. Instead, Knox refused to comply with a court order to disclose confidential sources (a la Judith Miller of the N.Y. Times), so the case couldn't go forward, so the court ruled against Knox and the Globe (default judgments being sort of like a punishment for failing to play by the rules of court).

The Globe and Knox wanted the U.S. Supreme Court to take the case in order to develop the notion of a constitutional privilege that reporters have to keep their sources confidential. The theory behind this is that the confidentiality of sources is so essential to what journalists do that without it, journalism itself is hindered (since skittish sources will no longer be forthcoming with reporters) and free speech is restricted. The thing that's funny about this theory of privilege is that, while journalists talk about it as though it were a done deal, no court has actually sanctioned it. In 1985, the SJC actually rejected a proposed change in the rules of evidence that would have created a reporter's privilege. And in 1999, the State Appeals Court, considering this very case, said, "there is no constitutionally based privilege protecting news reporters' sources of information." (Federal Appeals Courts have been equally unforgiving - even the uber-liberal, "no-Under-God-in-the-Pledge-of-Allegiance" Ninth Circuit.)

The rule for reporters, as it stands now (in Massachusetts and federally), is that when judges order the disclosure of any information, they must take into account the values protected by the First Amendment (which are different, in legal thinking, than the actual rights protected), then balance the need for the information against the actual likelihood that revealing a confidential source will discourage future confidential informants. So, when you call up Bostonist to clue us in on the hot, exlcusive, scandalous gossip, know that we'll do what we can to protect your identity, but the courts will not be on our side.

Photo: The U.S. Supreme Court. Note how this photo, from the Court's home page, is an updated one showing the flag at half mast. They run a classy operation over there at One Front Street.