Journalist's Privilege?


A while back I was called upon to be deposed in a civil case. The attorney wanted me to give the names of certain other parties to whom I, in my capacity a professor/advisor/writer, had promised confidentiality. When I spoke with my attorney, he said that I did not have a choice: I had no right, whatsoever, to refuse to give the names. This is true for every citizen in any case: no matter what you have promised someone, you are forced to give out names or other information as long as it does not incriminate you (I was a witness in the case, not the defendant) and you are not part of one of a few privileged relationships: attorney/client, doctor/patient, psychologist/patient, priest/confessee, spouse.

Maybe I am naive, but I was shocked that this was the case. I'll bet many Americans would be equally shocked to find that they can be compelled by a court to diverge secret information about friends, neighbors, relatives, etc. But that's the way the law is and, as my reading of Anglo-Saxon law shows me, it has been that way for a very long time. The idea, presumably, is that trying to have a fair trial means that witnesses have to tell what they know.

I think the fact that many Americans do not realize that they can be forced to testify as witnesses (probably because they believe that the Fifth Amendment applies to witnesses as well as defendants) has led to some confusion in the public about the anonymous source case just turned down by the Supreme Court. If people all realized that they had no such privilege, they would, I believe, be even less supportive of the journalists who face jail time.

Now I understand why journalists use anonymous sources (though the big-time papers over-use them, but that's another post). The leakiness of the government is in general a good thing: although it makes it tougher to ride herd on the permanent bureaucracy, it also helps uncover malfeasance. But a generalized "Journalist's Privilege" is problematic. Unlike attorneys, doctors, and psychologists, journalists cannot be licensed by the government (First Amendment prohibits it). As Glenn Reynolds and other "citizen journalists" correctly argue, employment by a news agency can't be the basis for such privilege because there's no bright-line test to determine who is a 'real' journalist and who is not. Thus theoretically anyone could claim that privilege if he or she had "published" the information on a website, in a newsletter, or via a text-message alert.

But, the argument is sure to go, there's a difference between a reporter for the New York Times and, say, me, "publishing" my website to a few hundred readers. The two extreme cases may be somewhat different in terms of how many people are reached, but there are "journals" and "periodicals" with very, very restricted readerships. The people writing for them get counted as "real" journalists, even if they are writing as a "non-ferrous commodities" reporter with American Metal Market journal. You simply aren't going to be able to draft a clear dividing line without the aid of a constitutionally forbidden de facto license.

When I was in journalism school we were told simply never to use anonymous sources at the early stages of our careers. "Every elected official will tell you right up front 'this is all on background' or 'this is all on deep background," one of my professors (who had won two Pulitzer Prizes) said. "Your job as a reporter is to get information on the record. Anonymous sources are the point of least resistance and thus to be avoided at all costs in a finished story." His idea, which is a good one, is that anonymous sources give you an idea of where to look or what questions to ask, but then you write the story in such a way that you don't need to use them. My (very) limited experience showed that he was right. There are different rules for Big Journalism, or course, but I think that journalists would be much better off if they followed my professor's advice.

As for a generalized journalist's privilege, I don't think it's going to happen. If courts (and we the people, since we made the laws through our representatives) see limiting the number of people in the privileged witness class to be a good thing (which they/we obviously do), then I do not think it likely that they will allow a category as nebulous as "journalist" to become privileged. In some ways this is too bad, since the general public may lose out on important information. But on the other hand, if I, for the greater good of society, have to divulge some students' secrets about drug use or divorcing parents or sexual behavior or cheating or health problems (and none of those were part of the case I mentioned above), then it seems to me that just about everyone else should have to struggle with the dilemma of whether to follow the law or refuse, honor one's promise, and pay the penalty. I am relieved that I am not in that situation and glad that now I know I could be. Other professors should realize that they too are in jeopardy of being put between sworn oath and citizen's duty.