The Conundrum of Reporter’s Privilege

On November 19th, Rolling Stone published an article by Sabrina Rubin Erdely entitled, “A Rape on Campus”, which alleged the recent gang-rape of a woman referred to as “Jackie”, and discussed the University’s failure to respond to the alleged attack and the seemed indifference the University has historically maintained regarding past sexual assaults on campus.

Due to the sensitive nature of the article’s content, Rolling Stone took the word of the reporter, and her source, “Jackie”, as truth, moving ahead with the article without further investigation. Not even one month later, Rolling Stone started to feel the heat of their mistake.

On December 4th, the magazine’s Managing Editor, Will Dana, prefaced the article with a letter of apology, in which he addressed the difficult decision Rolling Stone was faced with due to the nature of the claims.

“In the face of new information reported by the Washington Post and other news outlets, there now appear to be discrepancies in Jackie’s account,” Dana wrote. “Jackie herself is now unsure if the man she says lured her into the room where the rape occurred, identified in the story as ‘Drew’, was a Phi Psi brother.”

Rolling Stone reporter Sabrina Erdely was able to protect the testimonial and identity of her source because of the right she reserves to maintain the confidentiality of her source, called, “Reporter’s Privilege”.

According to the Reporter’s Committee for the Freedom of the Press, Reporter’s Privilege is, “a complete compendium of information on the reporter’s privilege — the right not to be compelled to testify or disclose sources and information in court — in each state and federal circuit.”

Communication Law Professor at Georgia State University and author of “Mass Communication Law in Georgia, Dr. Gregory Lisby, believes there is a foundational problem with privilege law as it applies to the media.

“It seems the purpose [of a trial] is to discover truth; to determine whether I’m guilty of a crime,” Lisby explained. “If that’s the purpose, then we don’t like anything that messes that purpose up; And yet, we have established certain privileged relationships…so that there are groups of people who don’t have to testify.”

Reporter’s Privilege, however, does not protect the identity of a source from the publisher of a media outlet, as was decided in the 1974 Supreme Court case, Gertz v. Robert Welch, Inc. Similar to the choice made by American Opinion (Welch) to publish without further investigation, Rolling Stone too decided to go forward without further investigation; Rolling Stone, however, did so, “because of the sensitive nature of Jackie’s story”, and “for fear of retaliation against her”, as Rolling Stone’s Dana, wrote.

Reporter’s Privilege is one of the weakest privileges granted under Article V of the Federal Rules of Evidence by the House of Representatives, with Attorney-Client and Doctor-Patient being the strongest, according to Dr. Lisby.

“Lawyers have to obey the rules of the State Bar Association; Doctors have to obey the rules of the State Medical Association… [Journalists] just have a code…an ethic,” he explained. “We have nothing that really demands us to do anything.”

Presently, no charges have been filed against Rolling Stone, although the incident has generated a significant media response, with strongly-worded articles appearing in The New Yorker, The Washington Post, the Chicago Tribune and The Washington Times.

Perhaps Rolling Stone’s blunder will result in the creation of concrete accountability. But for now, “[Journalists] can tell if they want to tell, and not tell if they don’t want to tell,” said Lisby. “And there’s no protection for the person accused of the crime.”

Print Friendly