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Thoughts on law and journalism from one who is neither, part II

The Judith Miller/Valerie Plame case has brought the issue of whether reporters should have the right to keep their sources confidential. The concept of "shield laws" has been bandied about, and I thought I'd take a look at it.

In a nutshell, a "shield law" extends the privilege of confidentiality to cover journalists and sources. Several states have such laws, but most do not, nor does the federal government. And the Plame case is bringing it to the forefront.

I am of mixed feelings about this. My main concern is that I have a deep-seated philosophical belief that rights and responsibilities go hand-in-hand, and with such an added privilege, journalists must be held to higher standards than currently.

Let's look at two other cases where confidentiality is guaranteed legally: clergy and lawyers.

Under the law, a member of the clergy cannot be compelled to testify about conversations they have with someone if they are acting at that point as a member of the clergy. It's often called the "priest-penitent relationship" or "the sanctity of the confessional," but it extends well beyond the Catholic priesthood. It's the government's way of recognizing that certain relationships are generally considered good for society in general, and merit special protection from government intrusion.

But there's a catch that is often overlooked. The clergy member in question must be an ordained minister of a recognized faith. I can't just pronounce myself High Priest Jay Tea of the Church Of The Divine Arkleseizure and demand that the government respect the confidentiality of any conversations I have with people. It's been tried, and it's failed miserably.

The second class of protected people are lawyers. The attorney-client privilege is virtually sacrosanct. It is only breached in the most extreme of circumstances, and then only under great restrictions.

One such case is that of Attorney Lynne Stewart. She represented Sheik Omar Abdel-Rahman, who was convicted in the World Trade Center bombing of 1993. She met with Abdel-Rahman with a "translator" and expected the lawyer-client privilege to protect those meetings. Suspicious officials recorded the talks, under tightly controlled conditions, and discovered that the "translator" and Abdel-Rahman were planning future terrorism, while Stewart feigned a conversation about Abdel-Rahman's legal circumstances. She is currently awaiting sentencing.

So, even with these restrictions, just what is the price lawyers must pay for the privilege? The short answer is that they must be lawyers.

That might sound a bit flippant, but it means that the person must be a lawyer in good standing. That means they must have passed the bar exam in their state and obtained a license to practice law. But that means that they are also officers of the court, and charged with reporting any violations of the law they discover -- a burden that ordinary citizens do not bear. Ms. Stewart was convicted precisely because she sat there and witnessed two other people planning terrorist attacks, and not only didn't report it, but tried to use her lawyer status to protect them.

So, what does that all mean to journalists? If we go by the above precedents, it means that journalists who wish the legal privilege of a shield law should be prepared to accept some sort of government regulation or control in return. States could license journalists, and require them to pass tests to demonstrate their qualifications. They could impose certain burdens on them, such as a higher standard of honesty and accuracy in their reporting, holding them more accountable for mistakes and sloppiness.

And that's why my initial response is to oppose shield laws. Reporters used to make a bragging point out of to what extremes they would go to protect a source, and defying a threat of jail used to do wonders for a reporter's reputation and career.

And sometimes it actually is better to go to jail. One of the earliest defining moments in Dr. Martin Luther King, Jr.'s civil rights campaign was his "Letter From A Birmingham Jail." He and other civil rights activists willingly violated laws set up to oppress people, and willingly accepted the legal penalty for doing so, to make their point. And that ultimately worked, as the sight of the police enforcing those unconstitutional laws eventually led to the Civil Rights Acts and the end of government-sanctioned segregation and oppression.

But a key element of any act of civil disobedience has to be the willingness to accept the penalty for the action. It's not the action that draws the public attention and outcry, but the government's reaction (or over-reaction) that gets results. The activist must be willing to be a "martyr" to their cause (and I mean this in the traditional sense of one who suffers for their beliefs, not the type of "martyr" who straps a bomb to himself and blows up a busful of innocent people) in order to draw public sympathy.

It's also a tenet that one doesn't make laws for the exceptional cases. And the number of cases where the law demands to know a reporter's source are amazingly few; to carve out a whole new law to cover such scant cases is risking an incredibly dangerous precedent.

Journalists know (or ought to know) going in that their right to keep their sources confidential is firmly rooted in tradition and sensibility, but NOT in law. There will be times when it will be called into question, and they must decide on their own just how firm their commitment to the ideals of their profession extends. It's an occupational hazard that they must live with -- or find another line of work.


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Comments (11)

Hmmm.I'm opposed t... (Below threshold)
ed:

Hmmm.

I'm opposed to shield laws because journalists regularly lie, deceive, cheat and fabricate. Stephen Glass anyone? Jayson Blair? etc etc etc. As it is I don't trust any story that has an annonymous source. Now they want a law that would allow them to use such sources with impunity?

No thanks.

Shield laws are handy, too,... (Below threshold)

Shield laws are handy, too, for any political operative who wants to spread dirt on somebody else and not take the fall ...

--|PW|--

I have been a journalist, s... (Below threshold)

I have been a journalist, so I have a few thoughts:

1) The "shield law" is probably better left as soemthing nebulous and undefined, like the current definition of "reporter's privilege." Codifying it under a shield law can weaken the usefulness of this privilege.

2) Going through a journalist sometimes constitutes a "shortcut" for a prosecutor or another entity that is trying to press a case; the prosecutor, for example, might, instead of relying on difficult police work or investigations, go straight to a reporter and demand notes, identities, etc., in the absence of some level pf protection for journalists. This becomes particularly worrisome if the prosecutor is himself a bad actor and uses his subpoena powers to harass and/or intimidate a journalist who is, say, conducting his own investigation of corruption in the prosecutor's office. In terms of private parties, there is a temptation to drag journalists who cover a dispute into the dispute between the parties; if a journalist, for example, has obtained information that is of use to one of the parties, then that party might try to extract the information from the reporter, to the detriment of that reporter's ability to earn a living.

--|PW|--

What would that higher stan... (Below threshold)
kbiel:

What would that higher standard for journalists look like Jay? Would we actually start holding journalists (and columnists) to the same libel standard to which every other citizen is subject instead of the abysmal "print anything you want, and then offer a correction blurb page 113 section Z if someone complains" standard that these idiots corrently have?

I think the line should be ... (Below threshold)
Steve L.:

I think the line should be drawn at the point where the journalist withholds information about a crime and not just protects a source.

In this case, if we assume that the dissemination of Plame's name is a crime, then the journalist would be aiding in the cover-up of a crime. Miller knows who divulged the name to her (i.e., who committed the crime.) She should be obligated to turn that information over to the appropriate authorities.

Let's take it to an extreme. Suppose that a "source" known to Miller called her up and said, "I'm going to go kill someone." Under a "shield law," she wouldn't have to say a word to anyone and could write a prize-winning story about the episode. Theoretically, she could go watch the crime then invoke this privilege to avoid providing information about it.

There's something wrong with a system that allows people to ignore a crime, then later, profit from it.

As I understand it, journal... (Below threshold)
Jem:

As I understand it, journalist shield laws are actually fairly common--they just offer varying degrees of protection. Though I think journalists should have the same rights as any other citizens in this area (and no more), I could live with a federal shield law that allowed a journalist to avoid testifying in cases where there is (in the reasoned opinion of the judge) another means for the prosecutor--or, in civil cases, the parties--to obtain the information.

Such a law should not, however, permit journalists to become party to crimes via a conspiracy of silence--if a journalist witnesses a crime or receives a confession of a crime, he/she/it has the same obligation to testify as any other citizen, and is subject to the same penalties for contempt of court. And it wouldn't break my heart to see journalists who become accessories to crimes be punished appropriately for assuming such a role.

I would not support government licensing of journalists. Anyone with a plausible means to publish (including self-publishing) online or in hardcopy could claim the priviledges granted a journalist--and let the judges define what constitutes plausibility.

Hmm. Sort of a philosophica... (Below threshold)
AnonymousDrivel:

Hmm. Sort of a philosophical position but I'd advocate letting the free market decide the penance. Getting the government to sanction or set boundaries for speech? Boy is that fraught with danger though it has some appeal.

No, I'd say it would be more effective in the long-term to consider the report and the reporter's methods to develop some internal, individually-derived grading system and reward/punish that work and his/her employer accordingly.

Like the work and the method? Purchase their publication or extend the subscription.

Dislike the work but like the method? Consider the work for remuneration.

Like the work but dislike the method? Cancel your subscription temporarily until producer "improves".

Dislike the work and the method? Cancel the NYTimes, er, publication.

Of course, this means taking some responsibility for action on one's own and not placing it on others with whom you may or may not disagree [...looking at the court's jurists here]. It's amazing how money will correct such anomalies despite the protestations of those who would complain about such a system.

Nice H2G2 reference.... (Below threshold)

Nice H2G2 reference.

From what I remember, the c... (Below threshold)
Andy:

From what I remember, the clergy privelege is conditioned on the clergy NOT broadcasting what they know. Why should a journalist get privelege for advertising what they know?

Everyone missed the only me... (Below threshold)
Ben:

Everyone missed the only meaningful difference between the attorney-client privilege and priest-penitent privilege on the one hand, and journalist shiled laws on the other hand - lawyers and clergy members have a duty not to reveal what was told to them by the client/penitent. Journalists, on the other hand, want the freedom to publish to the world exactly what it is that the source told them and the privilege not to reveal who that source is.

The social benefit to reporter shield laws is, we're told, that they lead to more truth coming out. People are sometimes reluctant to whistle blow and suffer the consequences whereas if a whistle blower tells a reproter, who publishes the "truth," there is really no one to retaliate against. More "truth" comes out because more people are willing to speak up if they know their fanny is protected.

This is very similar to the social benefit to the attorney-client privilege and priest-penitent privilege. These privileges allow individuals to speak to a trusted advisor without fear of reprisal merely for seeking the advice. The advice from the lawyer/priest might be to reveal to the world what the lawyer/priest is told and take the consequences. One thing is sure, though, the lawyer or the priest will not make that decision for you.

Reporters and their sources want it both ways. They want to publish the source's thoughts/statements to the world but keep secret the identity of the source. There is an argument for such a rule, as I made it above. But it is important to note that reporters sheild laws are contrary to every other area of the law. No one is able to prevent the government from forcing him to testify to what he says he knows simply because he heard it from someone else. Indeed, there is a word for the sort of evidence that reporters peddle from confidential sources - hearsay.

In other words, reporters want the ability to foist hearsay upon the public as "truth" without the public, or anyone else, being able to check up on them. In a court of law, hearsay is inadmissible because it is unreliable and not subject to cross-examination (i.e., to put in journalist parlance, "fact checking"). Why should there be a rule allowing reporters to put out unreliable information with impunity? Why should a source be able to publish something to the world through a reporter, but avoid cross-examination by those affected by the story (people with reputations to repair) because the source used a shill (i.e., a reporter) to make the public statement?

In a court of law, we don't allow a jury to even hear hearsay. If journalists want to publish hearsay, which the first amendment clearly protects, there is no reason to let them play by a different set of rules. Legal schollar John Wigmore said, "Cross-examination is beyond any doubt the greatest legal engine ever invented for discovery of truth." To further the cause of "truth," reporter's sources should be open, not secret.

Ack, Andy you jumped in whi... (Below threshold)
Ben:

Ack, Andy you jumped in while I was writing my post and stole my argument.




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