By: Bill Kirtz
Newspaper To Appeal Judge’s Ruling
A Massachusetts judge’s ruling Thursday against The Boston
Globe for refusing to identify confidential sources has set
up a significant clash between First Amendment and plaintiffs’
The Globe will appeal Superior Court judge Peter M.
Lauriat’s sanction for defying his order to identify sources. The
plaintiff in the case is suing a hospital and the Globe
for defamation, and charges that the newspaper hindered her
efforts to prove her case against the hospital by not identifying
The six-page opinion says the Globe can be sued for
damages just as if it had been found to have libeled the
plaintiff, and that it must pay the plaintiff’s costs. Globe attorney
Joseph Albano, of the Boston law firm Bingham, Dana and Gould, said the
plaintiff doesn’t need confidential source information to pursue her case.
He calls the case an important test both of how a judge determines whether
confidential source information is really needed to pursue a case and of
the appropriate remedy for such refusal. Albano said the Globe is
considering the venue for appealing the decision. Boston
media lawyer Robert Bertsche, noting that Massachusetts is one of
a handful of states without “shield law” source protection, calls
this a “very, very significant case for the message it sends
about the risk reporters take when you deal with confidential
Bertsche, with the firm of Hill & Barlow, notes that a U.S.
Supreme Court ruling equating a reporter’s promise to an oral
contract puts both legal and ethical pressure on journalists to
protect their confidential sources. The Globe asserts that
important journalistic and Constitutional principles are at
stake. “A newspaper’s ability to protect the identify of its
confidential sources is critical to the news-gathering function,”
said a spokesman.
The case stems from a 1995 article saying the plaintiff had
countersigned an erroneous medical order that resulted in a
patient’s death and had led the team responsible for the
patient’s care. The Globe, in a correction, retracted the
first assertion but stood by the second statement. The plaintiff
is seeking the Globe’s source for reporting that the
hospital had conducted an internal review of the case as well as
information about how the paper obtained both the review and the
report that a complaint had been filed against the plaintiff.
In 1999, an Appeals Court reversed Judge Lauriat’s order to the
Globe to reveal its sources for those statements, but
ordered the judge to determine whether the plaintiff needed the
source information in her case against the hospital. His six-page
opinion Thursday concluded that she does need that information.
Although Bertsche says this case underscores the “absolutely
critical importance of a shield law,” it’s not clear that such
protection would extend to civil proceedings like this case. Most
states’ shield laws protect reporters only in criminal matters.
“I don’t know what the Globe is hiding behind,” said the
plaintiff’s attorney, Joan Lukey, of the Boston law firm of Hale
and Dorr. She added that since Massachusetts has no shield law,
the judge performed the necessary “balancing act” between
plaintiffs’ rights to full disclosure and the press’ right to the
free flow of information. The judge correctly ordered the paper
to disclose confidential source information, Lukey said.
Bill Kirtz (firstname.lastname@example.org) teaches journalism at Northeastern University in Boston.
Copyright 2001, Editor & Publisher.