Leonard Downie Jr.: Any time a reporter enters into a confidential source relationship, it must not be violated, no matter what the source’s motive may be.
Under what conditions can and should a confidential source relationship be broken; or is it truly "never!"
In Branzburg (1972) Powell proceeded to describe the proper framework for determining
whether, pursuant to the rule adopted by the Branzburg majority, a
given reporter can be compelled to appear and give testimony before
a grand jury:
"[I]f the newsman is called upon to give information
bearing only a remote and tenuous relationship to the
subject of the investigation, or if he has some other
reason to believe that his testimony implicates
confidential source relationship without a legitimate
need of law enforcement, he will have access to the court
on a motion to quash and an appropriate protective order
may be entered. The asserted claim to privilege should
be judged on its facts by the striking of a proper
balance between freedom of the press and the obligation
of all citizens to give relevant testimony with respect
to criminal conduct. The balance of these vital
constitutional and societal interests on a case-by-case
basis accords with the tried and traditional way of
adjudicating such questions."
What this does not address is Woodward’s responsibility
to provide his relevant testimony to Fitzgerald without
a subpoena, which he rightly feared, because he knew his testimony
was on the face of it relevant and apparently unknown.
By extension, this adds an important contraint to Downey’s claim
that confidential sources should never be disclosed; clearly they must be
when there is an over-riding societal and criminal justice interest.
Woodward and Downey need to address this balance in their public
statements and apologies.