Thursday, July 21, 2005
Shielding the Press
The New York Times today editorializes in favor of a federal "shield law" to allow reporters to "guarantee that journalists are allowed the right to protect the names of confidential sources in most circumstances." And certainly, the public interest can be advanced by having certain information made public, where the source might not be forthcoming if not for the shield.
Here's my challenge, though, for the New York Times: Compose a "shield law" that you believe would serve the interests of reporters and the public, without encouraging criminality or jeopardizing national security. Then ask yourself two questions: First, would Judith Miller's source be protected under the law? And second, if not (or if a judge found that she was not shielded), would she testify? Because if, at the end of the day, we end up back where we started, what's the point of the exercise?
To the extent that the New York Times endorses language that permits forced disclosure "to prevent imminent and actual harm to the national security", is the naming of a covert CIA operative, and associated identification of her nominal "employer" as a CIA operation, not an actual harm to the national security? Or is the Times only concerned about the effect on national security after the leak is published, and not the harm to national security that results from the leak itself? Somebody leaks battle plans - but you can only force the identification of the leak before the battle is lost. And if the battle is won despite the leak, hey - no harm, no foul, right? That would be a curious rule.
In bringing up, "privileges already granted to doctors, psychiatrists, lawyers and spouses," it is important to note that the privilege requested by reporters is of a different nature. When somebody tries to pierce the attorney-client privilege, for example, they do so with knowledge of the identity of the holder of the privilege. That is, the client. The same is true with regard to medical privilege and spousal privilege - the identity of the patient or spouse is known. States as a rule hold that a client's identity is not covered by attorney-client privilege, just the confidential communication. And it should go without saying, for any of those privileges, that if the holder of the privilege instructs the lawyer, doctor, or spouse to broadcast the confidential communication to others, a later attempt to assert the privilege would fail.
That is to say, traditional privilege protects the information, even though the source is known. Reporters claim a privilege which protects the source, even when the information is known. The effect of such a privilege, and its public policy implications, are quite different than those implicated by other forms of privilege.
The Bush Administration hates leaks, except when it is orchestrating them, and is thus adamant that there should be no law protecting reporters, even as it is quietly rejoicing in Miller's decision not to reveal or, probably more accurately, confirm the identity of her sources. Would you fall on your sword for somebody who is simultaneously knifing you in the back?