WHEN a reporter says: ``I won't use your name,'' is he making an oral legal contract or just a good-faith pledge of confidentiality? Most editors insist that it has to be the latter, because there are rare circumstances under which the promise of anonymity may have to be broken. These might include situations where it is felt the reader has a right to know the source of the information to evaluate its possible bias.
Basically, however, a reporter has no authority to make legal contracts - oral or written.
That has been the modus operandi - at least until recently, when a Minnesota trial court held that two newspapers, the Minneapolis Star Tribune and the St. Paul Pioneer Press Dispatch, had broken oral agreements with a public relations man by naming him as the source of information in an article after promising anonymity.
Actually, it was the reporters who were researching the story who had agreed to confidentiality, but they were overruled by their editors.
A jury awarded the plaintiff, Dan Cohen, $200,000 in actual damages and $500,000 in punitive damages.
Mr. Cohen lost his job as a result of the press disclosures, and that may justify the actual damages.
It is the punitive damages, however, that worry most news specialists, regardless of how they feel about this particular case.
Stephen Gard, professor of law at the Cleveland-Marshall College of Law, points out that the amount of the award is ``far greater than a person would recover for the loss of a limb.''
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, says that by this finding, ``The court has turned an ethical concern into something that is a legal contract.''
And Everette Dennis, who heads the Columbia University-based Gannett Center for Media Studies, claims that the jury should have been instructed on First Amendment press freedoms. ``Reporters don't have the authority to make a verbal contract,'' Mr. Dennis insists.
An appellate court may very well reverse this ruling, particularly the punitive damages.
There are lessons to be learned here, however, both by the news media and others. Among them:
Reporters should not be too quick to promise anonymity, particularly if they can't guarantee it. Whenever possible, they should prod a source to go on the record. Stories that directly attribute information usually have more credibility with the reader.
In the Minnesota case, the source was well known to both newspapers. In this instance, he provided potentially damaging personal information about a political candidate which, it turned out, was not checked out for complete accuracy by the reporters.
Editors should carefully work out guidelines with reporters as to policy about anonymous sources. And they should seriously consider the option not to print a story rather than to name a source who has been promised confidentiality.
In this situation, the motive of disclosure was ostensibly to indicate to readers that the source had vested interest in putting the candidate in question in a bad light.
The press must rededicate itself to accurate, balanced reporting. This is not so much a legal responsibility as a moral or ethical one. And it should be remembered that First Amendment protections are not exclusive to the media but are for the public at large.
Ralph Izard, director of the E.W. Scripps School of Journalism at Ohio University, says the promise of confidentiality is a ``moral pledge, not a contractual one.''
``If a reporter does guarantee anonymity, there are very few circumstances under which that pledge should be violated,'' Mr. Izard insists.
Tom Goldstein, dean of the graduate school of journalism at the University of California at Berkeley, holds that newspapers must have clear guidelines about confidentiality - not only for their own staffers but also for free-lancers.
Dean Goldstein also points out that sources, particularly those in public life, must be aware of the realities of talking to the news media. As a former press secretary to New York's Mayor Ed Koch, he says he learned: ``If you don't want to see it in the newspaper, don't say it in the first place.''
Jay Wright, a professor at Syracuse University's School of Public Communications, says publicity from this case may make reporters ``more sensitive'' to the problem and sources more sensitive about whom they make agreements with.
``I tell my students in class: `Don't take this lightly. Try to coax your source into going on the record. You will get a better story. The reader will be more interested.''
Good advice - not only for journalism students but for veteran reporters and editors as well.
A Thursday column