Reporters and Sources

REPORTERS AND SOURCES….On Monday I wrote a post in favor of a federal shield law that would protect reporters from having to reveal their sources in court. Cruising around the blogosphere on Tuesday I saw a lot of resistance to this idea, so I’d like to take a crack at persuading a few more people that shield laws are a good thing. Here are some of the most frequent responses I saw.

Why should only reporters get a special privilege? The rest of us have to testify in court whether we like it or not

It’s not just reporters. Physicians aren’t required to testify against their patients because, as a matter of public policy, we think the value of having sick people get medical help outweighs the value of doctors testifying in criminal cases. Lawyers have a similar privilege with their clients because we believe that the right to a vigorous defense would be compromised if clients couldn’t confide in their attorneys. Priests, therapists, and psychiatrists also enjoy various degrees of immunity.

There’s a parallel public policy argument for reporter-source privilege. In a free society, the press plays a unique role as a government watchdog, and they can only play that role effectively if they’re able to promise confidentiality to sources, most of whom would be unwilling to talk to reporters unless they knew they were protected from reprisals. In theory, reporters could still do their jobs without anonymous sources, but in practice their sources would dry up if they felt their anonymity was in danger ? and the government would then gain a huge advantage in its ability to operate in secret. That’s too big a big price to pay. Watergate would probably still be a third rate burglary if Mark Felt had been worried that Nixon’s Justice Department could haul Bob Woodward into court and force him to disclose who Deep Throat was.

So reporters should never have to testify about anything?

Of course not. Even doctors and lawyers don’t have absolute immunity, and neither would reporters. For starters, only information gained as part of their job would be privileged. Gossip overheard at a party or eyewitness testimony unrelated to their job wouldn’t be.

Most states have shield laws for reporters, and the details of what’s covered varies from state to state. A federal law would spell out the limits of reporter-source privilege too.

If reporters get a special privilege, courts will have to decide who counts as a reporter ? and they’ll probably exclude bloggers yet again. That’s unfair.

This is a terrible argument against a shield law. It essentially advocates ditching support for an important First Amendment principle just because a court somewhere might someday decline to give it to one of us.

Keep in mind that standalone ranting didn’t start with blogs, and courts have had to decide questions like this before. If you mimeograph a quarterly newsletter with an audience of 100, are you a reporter? Courts will have to make judgments about these things, and I suspect that in most cases bloggers will be covered. But even if they aren’t, reporter-source privilege is still a principle worth supporting.

Protecting a source who’s a whistleblower is one thing, but the person who outed Valerie Plame was breaking the law, and doing it solely for partisan revenge.

Almost all whistleblowers break the law, if only by handing over government property ? and often the laws they break are more serious. If you force reporters to testify against any source who has broken the law, most sources will dry up.

As for the motive of the leaker in the Valerie Plame case, it’s hard to hang your hat on that. After all, who gets to decide which leakers are acting from virtuous motives and which ones aren’t? One man’s patriot is another man’s traitor.

If you support free speech, you support it regardless of whether somebody is saying something you like. Likewise with reporter-source privilege, you have to support it regardless of whether you like the motives of the leaker. There’s really no other way.

It’s worth keeping in mind that reporters already have a hard time keeping sources confidential. There’s a pretty good chance, for example, that Matt Cooper’s subpoena came only after prosecutors had subpoenaed his phone records and discovered who he had talked to.

We may not like the fact that White House operatives are (so far) getting away with outing Valerie Plame, but there’s a larger principle at stake. Most whistleblowers are simply not willing to tell their stories to reporters unless they know their identities will be kept secret, and keeping that assurance credible is a lot more important than the outcome of any single case. A well written federal shield law would accomplish that.

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