Who's a journalist?
Anthony Lewis is here at Cardozo this evening, speaking about whether to protect the confidentiality of the journalist-source relationship by statute.
He has several core messages. First, journalists shouldn't always be entitled to this protection. What if a story has been planted with journalists by secret police or other bad actors? What if a journalist has defamed someone by passing on the statements of confidential sources? Should we provide no remedy to those whose reputations are ruined by journalists? Second, who is a journalist? If there are 40 million bloggers, and they are witnessing the world around us, should they be kept from their citizen-duty of testifying? Third, can't we trust courts to balance the benefit of the confidential information to society against the harm that would be caused by disclosure of the confidential source? Lewis is 80 this year, but boy is he acute and well-spoken. He doesn't think it's possible or appropriate to write a shield law that will work, particularly given that the government will demand a “national security” exception that will have the effect of swallowing the stated rule. He wants reporters to look to courts for protection of their confidential relationships with sources on a case-by-case basis.
Max Frankel then gets up to respond. His is the battlefield view. We live in a garrison state, he says, and we have since the beginning of the Cold War. Our presidents can classify millions of documents by executive order, and reporters can't work with any of this information unless they can have access to confidential sources. Of course reporters must write, to protect our nation and reveal the bad acts perpetrated in the name of national security. They must “publish and be damned.” And if a few prosecutors want to seek disclosure of confidential sources, well, let 'em try. Reporters should make few promises about confidentiality, but when they make them they must stick to these commitments. Don't let judges weigh the value of particular snippets of information to the public — after all, these bits are woven together by reporters to build stories, and it's impossible to say what one disclosure may have contributed to the ecosystem (my word, not his) of a story.
Victor Kovner is next. He optimistically and with great precision tries to clarify the discussion in a lawyerly way. Reporters have an absolute privilege in many states not to serve as witnesses. We have this law on the books in New York, and law enforcement has been able to continue its work. And reporters have a qualified privilege not to reveal their sources. This privilege stems from the First Amendment, from statutes in many states, and from the federal common law. The Department of Justice's own internal guidelines on this subject, written under John Mitchell in the early 1970s, embody this qualified privilege: only go after a reporter's confidential source when the information is material, when it is closely mapped to the underlying claims, and when there is no other way to obtain it. (”Materiality, criticality, and exhaustion.”)
Kovner points out that Special Counsel Patrick Fitzgerald wasn't bound by these DOJ guidelines, and so he went after Matthew Cooper and Judith Miller for their sources. As it turns out, the quality of their information wouldn't have overcome the qualified privilege, had the privilege been applied (or so Kovner believes).
Kovner finds recent opinions on the subject of the existence of a federal common law qualified privilege by Judge Tatel (DC Cir) (concurring) and Judge Sack (2d Cir) (dissenting) to be particularly well-written. Counting noses, he's suggesting that there are judges who believe in the existence of this qualified privilege, legislators (at least one former journalist) who understand its importance, and prosecutors who already feel themselves bound by it — and he even thinks that President Bush wouldn't veto a federal shield bill if it were presented to him. The law would have to have a national security carveout, he has to concede, but he seems to think that would be better than no law at all.
But, as of the time I had to leave the room, Kovner hadn't explained how we'd decide who is a journalist. Reporting from Cardozo Law School, I'm…
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3 Responses to “Who's a journalist?”
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I think journalists and their sources is a great example of the limitations of law. In fact, I think all lawyers should be required to take a course in the limitations of law, but that's another matter.
You cannot - and should not - be able to define what is a journalist. It creates a dangerous box in which the agents for the fourth estate can be contained and so, eventually, controlled.
If you cannot say what is and is not a journalist, does this mean a greater evil is bestowed in that journalists' don't have rights? No.
The strength of the confidential source stems not from law but from culture. In the UK - where the laws refer to the story and to the press but not to the person that does the writing - judges are extraordinarily wary about ever requesting the source of a story. Why? Because it is a very deeply held belief that a journalist will never divulge their source, that there is a much wider and more important issue than that one journalist and their one source.
I was - and still am - prepared in a heart-beat to go to jail to protect the identity of the sources of my various stories (not that that situation is likely to occur). And it is that culture - and the odd person put in jail by a judge, which then creates a storm of protest by the media - that makes judges shy away. Nothing to do with laws, all to do with pragmatic judging.
In the US, where there is the First Amendment and countless other protections and safeguards the situation is, ironically, weaker, I would argue because US journalists expect some kind of automatic protection. Creating a new law would simply increase this sense that the law can decide this sort of situation.
It can't though because the gaining of confidential information is by its nature already legally circumspect. People do it anyway. If journalists want to protect their sources, they need to build the culture of refusing ever to divulge.
In the recent case in the US, the journalists failed themselves by finding various ways of saying who their source was. Yes, they were put under pressure, but then that was the test. If they had refused point blank - all of them - and all taken jail time and all refused for a second to discuss it, the outcry would have been enormous, the judge lambasted, the journalists let out and then you have a big precedent that journalists would draw inspiration from and judges would be wary of in future.
Calling for a new law is the wrong way around to my mind.
Kieren
Thanks, Kieren. As you point out, there are cultural beliefs that are always stronger than written laws. But there's also another way to see this — there is no longer such a strong belief here in the US in the sacrosanct-ness of the journalist relationship with a source. Why should that relationship be specially protected (so goes the question)? We have very few “privileged” relationships here, and there is less trust in the press than there used to be, so this one is under pressure. There might not be the backlash you're assuming, even if a journalist stood her/his ground. I happen to be someone who believes that the press plays an important role in society, but even I have to question my quasi-religious beliefs along these lines.
The press goes in and out of fashion. It will only take a scandal, only possible through anonymous sources, for it all to turn back the other way and then everyone will be talking about the glory of the Watergate journalism by Woodward and Bernstein, and so on.
Although at the moment I would say that the US press is going through a most peculiar time where the extremes are the mainstream and there is occasionally a blatant refusal to even try to be objective.
Plus of course the recent focus on celebrity pap. It'll all come back at some point, but in the meantime I still argue that if journalists want these rights, they should be prepared to fight for them, rather than rely on laws working in a very difficult and complex area.
Kieren