After rejecting the defendants' argument that the First Amendment protects a reporter in naming sources regardless of any agreement with those sources, Judge Kollar-Kotelly nonetheless ruled for the defendants. She held that under Virginia common law, an agreement between a reporter and a source that the latter's comments are "off the record" is not meant to create a legally enforceable contract. Judge Kollar-Kotelly relied on what was, at the time, the only previous published ruling on the question, a Minnesota Supreme Court case. In 2006, another federal district judge reached the same result applying Mississippi law. The basic reasoning in each of these cases is the same. Here's what the Minnesota Supreme Court said:
We are not persuaded that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract. They are not thinking in terms of offers and acceptances in any commercial or business sense. The parties understand that the reporter's promise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract.... Indeed, a payment of money which taints the integrity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.(I haven't found a free web-based version of the ruling in Steele v. Isikoff. It's officially reported at 130 F. Supp. 2d 23 (2000).)
Many people have criticized Samantha Power as naive for not establishing that her statement was "off the record" before calling Senator Hillary Clinton a monster, but my review of the case law indicates that even if Power had gotten such a commitment in advance, it would not have been enforceable. I realize that this is cold comfort for Professor Power.
Posted by Mike Dorf