Political Commercial on ABC

[fabsroman]

I saw an ad on ABC tonight at 11:30 that was quite disturbing. What was even worse was the program Nightline that came on afterward.

The commercial was done by a "conservative" that was saying that enough was enough and that Delay should stop threatening judges, that they should stop taking into account religion, that the filibuster is fine, and that we should keep checks and balances. Oh yeah, he really must be a "conservative". At the end of the ad they provided a phone number to call your representative.

Nightline was about how two reporters are being prosecuted for contempt of court because they will not disclose their sources pertaining to the disclosure of a CIA agent. They are the only two that have decided not to reveal their sources. Now, I am not for confidentiality for journalists when it comes down to crimes.

Kopel just brought up the liberal/conservative card. The two of the accused are going in front of the Supreme Court and one has a conservative attorney and the other has a liberal attorney. This program is killing me.

[fabsroman]

Here is an article on the journalists privilege right.

Eugene Volokh has an informative editorial on the journalist's privilege and how it interacts with law enforcement efforts to punish unauthorized leakers of information:

Say that an I.R.S. agent leaks a politician's income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens' privacy and ensure a fair and efficient tax system.
To punish the agent, prosecutors may need to get the leaker's name from the reporter; but if the reporter refuses to testify because of a "journalist's privilege" to protect confidential sources, the agent may never be caught. Such a pattern is evident in the Valerie Plame matter, where an independent prosecutor is trying to learn who leaked the name of Ms. Plame, a C.I.A. operative, to the press. Uncooperative journalists, including those at The Times, may face jail.

The fate of the reporters involved in the Plame affair - and that of the reporter in Providence, R.I., who was convicted of criminal contempt last month for refusing to disclose who, in violation of a court order, gave him a tape of a city official accepting a bribe - will of course turn on questions particular to their cases. But the solution to the larger problem turns on other questions: Should there be a journalist's privilege? What should its scope be? And who exactly qualifies as a journalist?

Thirty-two years ago, the Supreme Court held that the First Amendment does not create a journalist's privilege: like anyone else, journalists must testify when ordered to do so. But Justice Lewis Powell, in a cryptic three-paragraph concurrence, wrote that there should be a modest privilege protecting journalists from unnecessary harassment by law enforcement. In such cases, he wrote, journalists should be allowed to claim the privilege, and courts should try to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

Lower courts are now split on whether the privilege exists. Legislatures likewise disagree; about two-thirds of the states have recognized a journalist's privilege of varying strengths, but the remaining states and the federal government have not. Senator Christopher Dodd has introduced a bill that would establish the privilege in federal court.


Are you bored by this, by some chance? Well, you shouldn't be--especially if you are a blogger. Because look what comes next:

So the situation is a mess - and it's getting messier. Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.
The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Yet when everyone is a journalist, a broad journalist's privilege becomes especially costly. The I.R.S. agent, for example, no longer needs to risk approaching many mainstream journalists, some of whom may turn him in. He can just ask a friend who has a blog and a political ax to grind. The friend can then post the leaked information and claim the journalist's privilege to prevent the agent from being identified. If the privilege is upheld, the friend and the agent will be safe - but our privacy will be lost.


Eugene's solution is to craft a journalist's privilege similar to that enjoyed between an attorney and a client. If the client says something to the attorney, generally, it should be protected by the privilege. But if the client tries to enlist the attorney in the commission of a crime, that is where the privilege ends. Eugene proposes a similar rule for journalists.

At this point, I suppose that is the best rule that can be crafted. But it will be interesting to noodle the issue a little further.

Posted by Pejman Yousefzadeh at December 2, 2004 11:34 AM | TrackBack

Comments
Attorney-client privilege is limited to people who have been admitted to the bar acting as attorneys. Someone who has not been admitted to the bar claiming to be a client's attorney would have no standing to make that claim, and his client would have no protection against the "attorney" being compelled to give evidence, right?

So we will have to license journalists, and only those so licensed would have this shield privilege. Who is going to license journalists, authorizing particular persons to have this shield right and others not to have it, and on what basis and criteria? If it is the people now running the media you can bet that there will be even less intellectual diversity in the media afterwards than there is now, and attempts to hold journalists accountable for pushing frauds, like the Rathergate memos, will be much less successful than they are now.

[fabsroman]

I kind of agree that if the journalist is breaking the law by disclosing the info, there should be no privilege and both should go to jail.

If the IRS agent discloses the info and the journalist publishes it, they should both go to jail. Same goes for the person that disclosed the name of the CIA agent and the journalist that published it. They should both go to jail.

I also think journalists should be required to disclose a source when it may lead to the apprehension of a person that committed a felony. Then again, that is about the only time that a journalist would be asked to testify about a source under oath. This is a tough subject.

[Steverino]

Personally, I think that when it gets that late into the evening and you cannot rest, the best thing to do (rather than watching any aggravating political stuff prior to your slumber) is to get out a glass of warm milk and that old, warm dog-eared friend of yours...the Beretta catalog!