We Need a Federal Journalist-Shield Law NOW

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."

Comments

[Frederick Hamilton]

A big issue is the "serious-journalist" designation. I like a large number of people find a much better journalism with much more in-depth analysis on the internet. From a number of sites. Hardly a one from the web sites of "serious-journalist" sources such as NYT, WSJ, WaPo, et al.

So, how would the internet journalists who are every bit as serious as their full time truncated MSM bretheren be treated in your new priveldge law?

[Frederick Hamilton]

For instance, if Prof Bainbridge was given privelege to a source informing him of illegal activity at a large corportation or Prof Stone was given off the record secret source information from an al Qaeda informant about a terrorist activity, would they be protected?

[Political Umpire]

The internet rather undermines a lot of traditional censorship and confidentiality laws. I have a copy of a private ruling on a sensitive matter (the shooting by the British police of an innocent person mistakenly thought to be a terrorist). If I published it in this country I'd be in contempt of court. But I could very easily send it electronically from an internet cafe to a friend overseas who could put it on a blogsite. The friend would be outside the UK jurisdiction and therefore untouchable, while no-one could trace where her source came from. I wonder in the long term what effect the internet will have ...

[Joan A. Conway]

The New York Times is a propaganda rag!

[theDonnybrook]

I think Frederick Hamilton and Politlcal Umpire raise a very important point that works in concert with the concers regarding what kind of person constitutes a serious journalist. Would Mike Drudge of the Drudge Report be protected? How about students at an undergraduate or law school news paper breaking local political news? There are pros and cons on both sides of the argument. Regardless, the prevailing interests likely favor a qualified privilege over an absolute alternative. At least in this regard, the protections could extend beyond the sphere of serious-journalist and extend to internet upstarts and activists like Josh Wolf.

[Frederick Hamilton]

Actually Matt Drudge, and the overall point is that the main stream press media is in a steep decline both in readership and profits and attempting to give only "priveledges" to this dying behomth would not be appropriate.

Even the owner/publisher of the NYT wasn't sure there would be a print NYT in 10 years or so.

More info will be exchanged by journalists over the internet and with streaming video et al so whatever Prof Stone has in mind will need to take into account the rapidly changing face of journalism. The old days of David Broder, Judith Miller, Thomas Friedman, William Safire, Maureen Dowd, Charles Krauthammer, Robert Novak, et al being the fountain of information is history. They are the ones now who only skim the news/facts. The real digging into the news is being handled on the internet. Ergo. What would Prof Stone's new law look like.

Would Baninbridge, Malkin, Kos, Power Line, Hugh Hewitt, Volkoh, Instapundit (Tenn. Lawyer Glen Reynolds), Stone himself, Becker-Posner, be considered journalists in his new legislation?

[student]

"A serious journalist-source privilege is imperative to the national interest."

Imepartive in what sense? The fact that there is presently no federal privilege and never has been one seems to cut against its importance. How has the country made it this far without it?

It is not like you can argue that things like the Watergate revelations would have never happened without the privilege, since, after all, the Watergate revelations happened without the privilege.

It is difficult, close to impossible, to point out individual instances where people have not come forward because there was no privilege. The fact is they didn't come forward, so we don't know that they would have come forward. But this means that the policy argument behind having a privilege is based on a complete unknown. And as you point out, we shouldn't let the privilege be shaped by hypotheticals.

[Joan A. Conway]

Frederick Hamilton | February 22, 2007 at 08:58 AM and student | February 22, 2007 at 12:45 PM, I am not sure those golden old days were anymore serious about journalism as the so called journalist of today!

Simply because Americans knew less, challenged information a lot less, and the official coverage of having an actual source or editorial associated with someone's name rarely was discussed with TV viewers, if not at all with Radio viewers. Early media viewers and listeners were babes in the woods as far as authority was concerned. Those old days were days of innocence and exploitation, and if today resembles it in anyway, then we have done little to advance the knowledge that you can not trust what you read. Read Ugo Collelo, University of Tulene, "Trust the Tale and not the Author" 1996: Legislative Motive in California.

[Frederick Hamilton]

Joan
I agree we have come a long way. Now supposed authoritative news sources such as the NYT and CBS which in the past would have been trusted out of hand to be presenting the truth are now under the scrutiny of experts who can get out the real truth through the internet rapidly and debunk obvious untruths and bias. I too growing up remember the seemingly innocent time ot trusting the main stream media.

That is my point with regard to protecting journalists and their sources. We have been shown too often that journalists at CBS, NYT and others fabricate and lie. Why would anyone want to be giving folks like that protection?

A great example is the ongoing trial of Libby. What a mockery of justice. It is interesting to see the entanglement "journalists" have placed themselves in with regard to government sources.

I am afraid Prof Stone is shouting in the wilderness with a proposal that today makes no sense unless his legislation would protect everybody that is engaged in the business of "journalism". You, I, he, Baninbridge, Kos, Huffington, Malkin, Hewitt, Reynolds, Drudge, et al.

The main stream media has earned the distrust of America. I do mean "earned". To give only the main stream media protection from breaking the law as now constructed regarding telling the truth to a federal law enforcement officer or federal court makes no sense.

[Anne Hiltner]

The New York Times has been upset in the past three years at the republication of a book on the press by a Chicago journalist of 1950 which traces the claims of the press to anonymous sources through the courts wich ridiculed the idea that the scurrilous press has the education, degrees, certifications, or merit of the "professionals" with a confidentiality privilege. Apparently the UofC hasn't kept up with its librar work either - utterly disgraceful reprint!
PS Do you think Dateline on NBC with To Catch a Predator series on internet sex with young people is a form of disallowable ENTRAPPMENT?

[Roach]

I was somewhat unpersuaded by this article. Then I noticed the title. "NOW" is in ALL CAPS. Holy S**t! That changes everything. Just like those little twinkly comments on Myspace mean "I Luv U" in Teen-ese.

This is really an issue of profound importance. This morning, as I read about salacious and flirty emails between NASA employees and noticed that most muggers were described as "5'8" and wearing a dark sweatshirt" in today's papers, I thought to myself: these news organizations are full of integrity and useful, clear, and unfiltered information. How much further they could go if only they had a federal journalist shield law.

WAY TO GO GEOFF!!!!!!!!!!!!!!!!!!!!

P.S. Wasn't that better than "Way to Go, Geoff."?

[Lackawanna Blues]

Amen, brother Roach.

We need about 150,000 things before we need a federal journalist shield law NOW. One of those things is fewer law professors. Another is government employees who actually respect government confidences.

If the choice is between trusting government and trusting journalists I choose trusting neither.

I'm sure that those Americans who raise families and toil for somewhat less than Professor Stone makes couldn't give a rip about a federal journalist shield law. They probably care even less about whether we get one NOW.

[Frederick Hamilton]

From 1958 to 1962 Johnny Carson hosted a daytime quiz show called "Who do you Trust".

That show should be brought back today and used to dissect current events and current problems.

Imagine a full hour show on "Who do you Trust" regarding global warming. Lawrence Solomon of the Canadian Financial Post has been writing a series on "The Deniers" about scientists who poke large holes in the whole global warming issue. Latest is a famous enviornmentalist and geophysicist from France (Allegre I believe) who blows huge holes in global warming.

Ergo, Who do you trust? Journalists? Not on your life. Boy, they carry an agenda baggage. Politicians. Worse than journalists. Sorry, non serious thinkers only interested in the next election. The most trusted in my mind are people in the blogosphere who put forth a point of view with facts to double check and an in depth analysis that no politician or journalist cares to engage in.

Ergo. Protect the bloggers and let the journalists go to hell and get their devils due.