As the new Democratic Congress moves ahead decisively on a panoply of issues, it should confront a particularly pressing one: freedom of the press. Congress should expeditiously enact a federal journalist-source privilege law, which would protect journalists from compelled disclosure of their sources’ confidential communications in the same way psychiatrists and lawyers are protected. Importantly, neither Congress nor the press should be unwilling to compromise when the alternative is to forgo such a privilege altogether.
A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society’s interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting “involved.”
As we have seen over the past several years, particularly with the federal investigation of the leak of the identity of former C.I.A. operative Valerie Plame, the absence of a journalist-source privilege leads to confusion, uncertainty and injustice. At the hands of unrestrained federal prosecutors, journalists have taken a serious battering.
There is nothing novel in the call for such a privilege. At present, 49 states and the District of Columbia recognize some version of it. The federal government is long overdue to enact such a privilege as well. This issue has often been before Congress, but Congress has consistently failed to act, in part because the press has stubbornly insisted that anything less than a perfect privilege is unacceptable. We must move forward. The press can no longer afford to let the perfect be the enemy of the good.
Of the jurisdictions that protect a journalist-source privilege, only 13 states and the District of Columbia do so absolutely, meaning that under no circumstances can the state override the journalist’s right to withhold privileged information. The advantage of the absolute privilege is that it provides clarity and certainty to sources, journalists, lawyers and courts. The disadvantage is that in some situations, it could deprive law enforcement of critical information.
In 36 other states, the journalist-source privilege is qualified, meaning that the government can require a journalist to reveal confidential information if the government can prove that it has exhausted alternative ways of obtaining the information and that the information is necessary to serve a compelling state interest.
So how would a qualified privilege work at the federal level? The issue most often arises over matters of national security. Suppose, for example, a journalist reports that she has been informed by a reliable source that an unidentified major building in New York City will be blown up by terrorists the following day. It would seem irresponsible, indeed insane, to allow the reporter to refuse to disclose the identity of the source. Certainly, the government has a compelling interest in forcing the reporter to reveal the name of the source so it can attempt to track him down and possibly prevent the attack.
The trouble is that even in this situation, the matter is not free from doubt. Without the protection of an absolute privilege, the source might not have been willing to disclose the information to the reporter in the first place. Public officials are certainly better off knowing that a threat exists, even if they do not know the identity of the source, than knowing nothing at all. Thus, breaching the privilege in even this seemingly compelling situation might in the long-run prove counterproductive to protecting national security.
Nonetheless, such situations are more hypothetical than real, and they should not determine the shape of the privilege we enact. If the press has to compromise by endorsing a law that would enable the government to pierce the privilege in order to address an imminent and grave threat to national security, it should do so. There is little gain in sacrificing the privilege altogether because of a struggle over an abstract principle that would govern situations that have never happened in American history and are unlikely to happen in the future. Politics is, as they say, the art of compromise.
A serious journalist-source privilege is imperative to the national interest. It should be high on the list of Congress’s priorities for 2007. And it should be held hostage neither to hypothetical nightmare scenarios nor to the press’s stubborn, if principled, insistence on more than it really needs.
This first appeared as an op-ed in the New York Times on February 21, 2007, under the title "Half a Shield is Better than None."