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Sunday, July 10, 2005
There has been a lot of discussion of the need for shield laws in the media, with the Valerie Plame case heating up. ("Shield laws" are laws that create a "reporter-source" privilege that allows reporters to avoid testifying regarding what their sources told them in an investigation.)Unfortunately, the media seems to be betraying its institutional bias in favor of shield laws as necessary to ensure that the next Watergate story doesn't get squelched. Meanwhile, those who oppose shield laws are responding, some with sophisiticated arguments, others with screeds about how bad the Plame leakers were. This issue is neither as simple as "reporters need to be able to promise anonymity" nor is it as simple as "a crime was committed, so the reporters must testify". Rather, the issue of enacting a shield law concerns a number of complicated issues, such as:

(1) Who is a journalist? Is a blogger a journalist? Howabout someone commenting on a blog? Does the First Amendment permit discrimination in favor of those who own printing presses or radio stations as opposed to those who use cheaper media? And is it advisable to create a privilege that may be asserted by anyone who posts on the internet?

(2) Why should any privilege extend to nonpublished information (Ms. Miller, after all, never published the information)? Isn't the purpose of the privilege to protect the ability of journalists to publicly divulge information that is embarrassing to those in power? Should Washington gossip, passed on to reporters and never published, be privileged? Especially if such gossip is illegal?

(3) Is the shield law worth the cost to the criminal justice system, i.e., in convictions that will be unattainable if the reporters' testimony is not compelled? Every new privilege comes at this cost, and for this reason, courts and legislatures DO NOT protect all confidential relationships. Parents can be forced to testify about conversations with their children, accountants (in many jurisdictions) can be forced to testify about conversations with their clients, best friends can be forced to reveal their closest confidences, etc. In each case, a privilege could be recognized, but it would mean that some criminals would walk. Is it worth it here?

(4) Other privileges are not absolute and also come with the proviso that the person asserting the privilege must obey a valid court order overriding the claim of privilege. Why should journalists have an absolute privilege? Why isn't a showing of compelling need, or the unavailability of the information from other sources, a sufficient justification to override the privilege? What if the leak itself is the crime, such that the journalist is the ONLY person who can testify as to whether the crime was committed? And why shouldn't journalists who disobey orders overruling privilege claims go to jail? That's what happens to lawyers and doctors and priests and psychotherapists who refuse to produce information that they are ordered to produce, after a privilege claim is overruled?

(5) Isn't it a concern that the broader the privilege that is granted, the more likely it is that journalists will contract to keep their sources anonymous in situations where there is NO compelling public need to do so? Is that a cost worth paying? Doesn't this case demonstrate that? Why were seasoned Washington reporters contracting with White House officials to keep them anonymous while they leaked secrets with national security implications so they could discredit a political opponent? We're a far cry from Watergate, aren't we?

(6) Is absolute confidentiality a necessity for reporters to obtain information? Lawyers, after all, can't grant absolute confidentiality-- there are several exceptions to the lawyer-client privilege-- and yet, clients talk to their lawyers about crimes that could result in their execution. Similarly, doctors and therapists can't grant absolute confidentiality, and yet people talk to them as well.

(7) Aren't most prosecutors extremely reticent to subpoena journalists? Exactly how many journalists have been jailed in the past 30 years for refusing to reveal sources? Aren't there guidelines that discourage this tactic in most cases? Is the prospect that a prosecutor may subpoena the reporter really so great that it impedes the promise of confidentiality granted by the reporter?

None of this is to suggest that there is no room for shield laws. Shield laws obviously do protect reporters in the Watergate situation where the government is out to punish leakers of embarrassing information. What this is intended to suggest is that this issue is not easy, and reflexive defenses of the media's right to promise absolute confidentiality, all the time, do not really appreciate the depth of the policy issues involved.

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