Throwing the Book at Revelations: First Amendment Implications of Enforcing Reporters’ Promises


As recently as three decades ago, courts refused to recognize the first amendment implications of defamation actions. Instead, the courts hid behind a veil of neutrality, stating that, in allowing these causes of action, they were merely protecting reputational interests and not infringing in any way on interests protected by the constitutional guarantee of freedom of the press. InĀ New York Times v. Sullivan, the Supreme Court recognized for the first time that many libel suits do bring these reputational interests into conflict with first amendment rights. The Court in Sullivan resolved the conflict in favor of the first amendment, and subsequent cases have clarified where the point of equilibrium lies between these two sets of interests.

While Sullivan and its progeny have involved the conflict between reputational interests and the freedom of speech, a new conflict has arisen in several recent cases between contract law and the first amendment. These first generation cases have arisen in situations where a reporter has given a source a promise of confidentiality in return for the source’s information. Although the press is generally quite protective of the identity of confidential sources and will often go to great lengths, including jail, to maintain a source’s anonymity, situations have arisen in which media outlets have utilized their editorial discretion to publicize what they believed to be an essential element of a given story – that is, the identity of the source.

Few courts or commentators have yet focused on the constitutional issues involved in construing these promises of confidentiality (and other such alleged agreements which purport to prohibit or penalize the publication of truthful, newsworthy information) as enforceable contracts. The issue of whether these promises implicate first amendment rights has been glossed over in a way not dissimilar to the pre-Sullivan treatment of defamation. Several of the courts encountering this issue have regarded it as simply a matter of the common law of contract and have subsumed first amendment issues to the neutral application of the common law. If there is offer, acceptance, and consideration, the argument runs, the court merely engages in the neutral application of the common law when it enforces the contract. Neutral application of these common law principles does not infringe on rights protected by the first amendment because there is no state action to implicate the Constitution, and, even assuming state action, the media outlet has effectively waived its first amendment rights by entering into the contract. The argument further assertsthat the state’s interest in neutral enforcement of contract law outweighs the media defendant’s first amendment rights. The clear parallels between this argument and the courts’ pre-Sullivan position on libel and defamation have not been explored.

This Note examines the conflict between contract law and the first amendment presented by these oases and argues that protections erected by the Supreme Court shielding the press from defamation actions should be imported to the contract setting. Part I examines how the Supreme Court resolved the conflict between the first amendment and reputational interests. Part II examines recent cases involving the conflict between the first amendment and contract law. Part III attempts to resolve this conflict between first amendment and contract in a way that harmonizes more comfortably with the Court’s defamation and libel holdings. Where enforcement of the contract would penalize the media defendant for the publication of truthful, newsworthy information, this Note argues that enforcement should generally be barred by the first amendment. Part IV turns to the policy implications and practical ramifications of such a legal rule, concluding that the proposed rule is both consonant with the courts’ holdings in other confidential source cases and is well adapted for the realities of modem newsgathering.

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