Dangerous Liaisons: Seduction and Betrayal in Confidential Press-Source Relations Lili Levi University of Miami School of Law, [email protected]

University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1991 Dangerous Liaisons: Seduction and Betrayal in Confidential Press-Source Relations Lili Levi University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons, and the Social Influence and Political Communication Commons Recommended Citation Lili Levi, Dangerous Liaisons: Seduction and Betrayal in Confidential Press-Source Relations, 43 Rutgers L. Rev. 609 (1991). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. ARTICLE DANGEROUS LIAISONS: SEDUCTION AND BETRAYAL IN CONFIDENTIAL PRESS-SOURCE RELATIONS Lili Levi* INTRODUCTION .................................. 611 I. MEDIA ETHICS, VOLUNTARY DISCLOSURE, AND SOURCE RETALIATION .......................... 620 A. A Typology of Confidential Sources ....... 623 1. Source Identity ...................... 623 2. Motivations for Leaking ............... 624 3. Leaks versus Plants .................. 628 4. Reasons for Anonymity ............... 631 B. The Ethic of Non-Disclosure ............. .632 C. The Occasions of Voluntary Disclosure .... 636 D. The New Trend of Source Retaliation ..... 639 II. CURRENT APPROACHES TO BREACH OF CONTRACT CLAIMS BY NEWS SOURCES ..................... 644 A. Freedom of Contract Model .............. 645 B. First Amendment Model ................. 656 1. First Amendment Immunity ........... 656 * Associate Professor of Law, University of Miami School of Law. A.B. 1977, Bryn Mawr College; J.D. 1981, Harvard Law School. This Article is dedicated to Steve Schnably and Kathleen Sullivan, for their immeasura- ble help in ways too numerous to name. In addition, I am grateful to the following col- leagues for their extremely helpful written comments on prior drafts: Mary Coombs, Steve Diamond, Marc Fajer, Michael Fischl, Steve Halpert, Richard Hyland, Jennifer Jaff, Ber- nard Oxman, Irwin Stotzky and Steve Winter. I have also benefited from highly illuminat- ing discussions about the piece with Ken Casebeer, Mickey Graham, Pat Gudridge, Jim Kainen, Susanna Lowy, George Mundstock, Marilys Nepomechie, Jeremy Paul, Rob Ro- sen, Allen Shaklan, Katie Sowle, Alan Swan, Rick Williamson, and John Zucker. I owe many thanks for the excellent research assistance of Allison Howard, Mark Huffman and Lily Vaamonde, not to mention the invaluable last-minute help of Gail Cooperman, Lanae Holbrook, Chris Miller and Kelley O'Neil. RUTGERS LAW REVIEW [Vol. 43:609 2. Defamation Privilege in Contract Actions 658 C. The Promissory Estoppel Model .......... 665 III. THE HISTORY AND CHARACTER OF PRESS-SOURCE CONFIDENTIALITY .............................. 671 A. Journalism, Government and the Myth of the Independent Press ................. 671 B. The Types of Dangers Posed by Confiden- tial S ources ............................. 690 C. The Many Stories of Reporter-Source Rela- tionship s ................................ 700 IV. TOWARD A CONTEXTUALIST ALTERNATIVE ......... 706 A. Setting the Stage: The Contradictory Char- acter of Secrecy .......................... 706 B. Sources, "Sourcerers," and the Social Val- ues Implicated in Press-Source Confidenti- ality . 7 0 9 C. Considerations Relevant to a Contextual Analysis of Source Confidentiality Claims . 714 1. The Character of the Information ...... 717 a. F alsity ......................... 717 b. Whether the disclosure was a plant 717 c. The nature and importance of the inform ation ..................... 718 d. Criminality of the original disclo- su re . 719 2. The Source's Reasons for Leaking ..... 719 3. The Relevance of the Source's Identity. 720 4. The Press' Reasons for Disclosure ...... 722 5. The Nature of the Relationship ........ 725 a. The particular dynamics of the in- teraction ....................... 725 b. Specificity of the non-disclosure agreem ent ...................... 726 D. The Approach Applied ................... 727 C ONCLUSION ......................... ........ 730 1991] CONFIDENTIAL PRESS-SOURCE RELATIONS 611 "The relationship between sources and journalists resembles a dance, for sources seek access to journalists and journalists, seek access to sources. Although it takes two to tango. more often than not, sources do the leading."1 INTRODUCTION The mythology of democracy reserves an honored place for the press. Fiercely independent, vigorous and critical, the news media of this vision serve the public interest in robust, informed debate and accountable government. For true believers in this romantic notion, the Watergate scandal represents the apotheosis of a watchdog press, capable even of toppling a President. Yet, skeptics might tell a conflicting story. History shows the press as far more lapdog than watchdog. Today, spin doctors, sound bites, staged media events, and campaign spot ads domi- nate politics and the news.2 Instead of Watergate, we have the authorized leak, through which political operatives plant mislead- ing information, manage the news, and orchestrate public debate from behind the scenes.' 1. H. GANS, DECIDING WHAT'S NEWS 116 (1979), quoted in E. ABEL, LEAKING: WHO DOES IT? WHO BENEFITS? AT WHAT COST? 1 (1987). 2. See, e.g., R. DINKIN, CAMPAIGNING IN AMERICA 159-68 (1989); D. BOORSTIN, THE IMAGE OR WHAT HAPPENED To THE AMERICAN DREAM 7-44 (1961); M. SCHUDSON, Deadlines, Datelines and History, in READING THE NEWS 81-82 (1986) ("newsgathering is normally a matter of the representatives of one bureaucracy picking up prefabricated news items from representatives of another bureaucracy"); Collins & Skover, The First Amendment in an Age of Paratroopers,68 TEX. L. REV. 1087, 1095-97, 1100-02 (1990); Devlin, Introduction, in POLITICAL PERSUASION IN PRESIDENTIAL CAMPAIGNS 1-16 (L. Devlin ed. 1987) [hereinafter POLITICAL PERSUASION]; Nimmo, Election as Ritual Drama, in POLITICAL PERSUASION, supra, at 163-64; DuBrow, TV and the Gulf War, Los Angeles Times, Feb. 7, 1991, at A10, col. 5 (defining spin doctors as "professional manipulators of television"); Carlson, The Spin Doctor Awards, Wash. Post Mag., Jan. 1, 1989, at 22; Safire, On Language: Calling Dr. Spin, N.Y. Times, Aug. 31, 1986, § 6, at 8, col. 3 (on derivation of term "spin doctor"). See generally M. SCHRAM, THE GREAT AMERICAN VIDEO GAME (1987); K. JAMIESON, PACK- AGING THE PRESIDENCY: A HISTORY AND CRITICISM OF PRESIDENTIAL CAMPAIGN ADVERTISING (1984); L. SABATO, THE RISE OF POLITICAL CONSULTANTS: NEW WAYS OF WINNING ELECTIONS (1981); J. TEBBEL & S. WATTS,THE PRESS AND THE PRESIDENCY: FROM GEORGE WASHINGTON TO RONALD REAGAN (1985). 3. See generally, e.g., M. HERTSGAARD, ON BENDED KNEE: THE PRESS AND THE REAGAN PRESIDENCY (1988); E. ABEL, supra note 1; J. McGINNIS, THE SELLING OF THE PRESIDENT (1969); Carlson, The Image Makers, Wash. Post Mag., Feb. 11, 1990, at 12. As pointed out in a recent article in the popular press, professional publicity experts "have made a mul- tibillion dollar industry" out of attempts to influence news reports, and "the White House has raised press manipulation to a virtual art form." Cose, Shopping in the News Bazaar, TIME, Mar. 26, 1990, at 64. The article quotes a journalism scholar's estimate that 40% of 612 RUTGERS LAW REVIEW [Vol. 43:609 Neither version of the story, of course, captures the full truth. Journalists and newsmakers both cooperate and compete to influence the public's perception of reality." Nowhere is this ambiguity more evident than in the press' relationships with its confidential sources. After all, while confidential sources provided the Wash- ington Post with much of its ammunition during Watergate,6 it is equally true that reliance on confidential sources makes the media dangerously vulnerable to manipulation. The dilemma is particularly acute today, as relationships of confidentiality between the press and its sources increasingly be- come a staple of modern newsgathering.6 On the one hand, the control of information under the aegis of the Imperial Presidency, the centralized government information apparatus, and the secrecy-obsessed national security establishment all suggest that much important information can only be obtained by promising anonymity to sources.7 On the other hand, since anonymity for its own sake has come to develop a certain cachet, journalists run the risk of overusing the device and allowing confidential sources to manage the news and use the press to mislead.8 References to anonymous sources and unattributed information in published reports can reinforce the impression that, far from arming the public with sufficient the news comes from public relations specialists. See also N. ISAACS, UNTENDED GATES: THE MISMANAGED PRESS 34-35 (1986). 4. See, e.g., M. LINSKY, IMPACT: HOW THE PRESS AFFECTS FEDERAL POLICYMAKING 36-37 (1986) [hereinafter IMPACT]; M. GROSSMAN & M. KUMAR, PORTRAYING THE PRESIDENT: THE WHITE HOUSE AND THE NEWS MEDIA 3 (1981). 5. See generally B..WOODWARD & C. BERNSTEIN, ALL THE PRESIDENT'S MEN (1974). 6. The institution of the confidential source is aptly, albeit facetiously, described in a Washington Post editorial: For the edification of those who may be unaware of the etymology, the family tree, so to speak, of the wellsprings

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