When prosecutors and litigants seek to unmask journalists’ confidential sources, it’s unfortunate, but not exactly surprising. They’re going to prioritize any advantage they can gain in court over protecting press freedom. But no one expects to see journalists demanding that other journalists out their sources.
That’s why it raised eyebrows when the NewsGuild, the country’s largest journalists’ union, recently asked a judge to force a reporter to do just that.
The demand arose from a lawsuit by journalist Mike Elk against the NewsGuild and its officials in Pennsylvania. Elk claims, among other things, that the union defamed him after he notified it of sexual harassment allegations against a former official.
The NewsGuild, which denies Elk’s allegations, demanded Elk’s communications with the sources who told him about the harassment claims. It also sought his email conversations with former New York Times columnist Ben Smith, who reported an alleged disparaging statement by union officials about Elk, which Elk cites in his lawsuit. When Elk didn’t comply, the union filed a motion asking the judge to order him to produce his source communications notwithstanding the reporter’s privilege. Poynter reports that Elk objected last week.
A dangerous precedent
The NewsGuild is taking the position that because Elk brought the lawsuit he “waives his privilege where his sources have information that goes to the heart of the NewsGuild’s defense.” If that becomes the law, reporters would have to choose between pursuing their own legal rights and protecting their sources. Journalists shouldn’t need to check their right of access to the courts at the newsroom door.
If the union persists, every lawyer seeking journalists’ sources will argue that “Even the NewsGuild agrees.” And sources will be less likely to talk to journalists if they know the reporter’s privilege goes out the window if the journalist ever decides to sue someone. Notably, neither of the 1970s cases the NewsGuild relies on are from Pennsylvania courts. That means the NewsGuild may be risking making new law in Pennsylvania that is adverse to its own members.
Of course, the NewsGuild is entitled to aggressively defend itself against Elk’s claims. It contends they’re meritless and for all we know they may be right. But it also needs to keep in mind its raison d'être. The NewsGuild itself has rightly condemned defendants’ efforts to out sources, even when the offender (Starbucks) specialized in selling coffee, not protecting the press. The NewsGuild called Starbucks’ discovery “dangerous,” even though its requests were directed to employees and union organizers, not journalists. It proclaimed that “journalists’ communications with sources must be protected.”
Union officials have said Elk requested journalists’ communications first. That claim seems to reference broadly worded discovery requests from Elk that don’t expressly carve out privileged communications. But there’s a world of difference between issuing catchall discovery requests (every lawyer does that) and specifically asking a court to order a journalist to reveal sources.
If Elk’s requests were too broad, the NewsGuild could have objected to them to the extent they called for privileged records. Elk has not filed any motion specifically seeking source communications, and even if he had, that’s no excuse for the NewsGuild to overstep too.
To be fair, Elk did file a defamation claim, and defamation lawsuits themselves can threaten press freedom. We’re not endorsing Elk’s decision to file that claim. We wish he hadn’t. But a union has a greater responsibility to protect the interests of the entire press than does a single journalist.
It’s also unclear what the NewsGuild hopes to learn through broad discovery into Elk’s source communications. What light could those records shed on whether the union and its officials, for example, made defamatory statements about him or breached a confidentiality agreement? Smith’s reporting identifies his source for the remarks Elk claims defamed him, so we’re unsure what Elk’s own communications with Smith could add.
A fishing expedition is not worth sacrificing journalists’ rights. If there are specific communications that the NewsGuild believes are nonprivileged and vital to its defenses, then it can amend its requests to narrowly target those records without asking the court to adopt a broad exception to the reporter’s privilege. That would at least limit the risk of the union setting precedent that is harmful to its members.
Expand the reporter’s privilege instead
If even a journalists’ union will compromise its press freedom principles to gain an edge in court, we certainly can’t trust government lawyers (or ordinary litigators with no particular attachment to press freedom) to restrain themselves from doing so.
In both criminal and civil cases, a lawyer’s job is to leave no stone unturned. They can be expected to keep demanding source materials unless either the law or their client tells them not to.
That’s why we’ve long advocated for an expansive reporter’s privilege at both the state and federal level. And so has the NewsGuild (which, notwithstanding this incident, has done plenty of great work defending journalists). As the NewsGuild itself once put it: “The ‘reporter’s privilege’ greatly enhances journalists’ ability to inform the people. Infringements on this privilege will harm the public.”
We hope the NewsGuild still sees it that way and reconsiders this dangerous path. If not, we hope NewsGuild members will urge union leadership to reverse course.