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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11 Comments

  1. ed July 7, 2005
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