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?


  1. - Because if, at the end of the day, we end up back where we started, what's the point of the exercise?

    From the perspective of the NY Times there are two points to the exercise:
    1) Further inflating the sense of self importance of the NY Times.
    2) Selling more newspapers.

    The first is furthered by the creation of a new "just for journalists because they are so important" privilege. The second is furthered by the creation of an incentive to gain more information from leaks (or at least generate more leaks) and thus have more stories to drive the sale of newspapers.

    My question to the NY Times would be this, "Who gets the benefit of the new privilege you want to create?" Does it extend to bloggers? How about bloggers who are members of political action groups/on the payroll of political parties? How about people who claim they are planning on righting a book? Would anyone in American who doesn't feel life testifying be able to claim the benefit of this new privilege simply by asserting that they are planning on writing a book about the events in question?


  2. It certainly is valid to ask how "journalist" is (or would be) defined.

    Issues of waiver are also interesting. Judith Miller claims that, although her source apparently waived his privilege, she fears that the waiver might have been coerced. As there is no legally recognized "privilege", she can stand behind that assertion ostensibly "on principle". But with a legally defined privilege, a judge could rule on the validity of the waiver, and... again, would she disclose, or would we be back where we are right now?

    Further, we have a situation where the "source" has apparently given grand jury testimony, admitted to having conversations with Ms. Miller, and apparently has described under oath what was supposedly said during those conversations. Under what traditional notion of "privilege" would that not constitute a waiver? A client testified about what he said to his lawyer, or what he said to his doctor? The privilege is waived. A source testifies about what he said to a reporter, and... there's supposed to be some special "privilege" which continues just in case the source perjured himself?

  3. I give your blog an A+ with a Gold Star! I really enjoy your content and will be back very frequently! I enjoyed the information you had on michigan attorneys as well. I actually have an michigan attorneys blog with all kinds of cool things in it. May I put a link to this blog of yours on mine?


Note: Only a member of this blog may post a comment.