Is there any institution the American public loves to hate more than the news media? Depending on your point of view, the institutional press is either irredeemably liberal or cravenly conservative, a toothless watchdog or a godless traitor, willing to do anything to sell newspapers or raise viewership ratings. News consumers marvel at the media’s fixation on the latest peccadilloes of a drunken starlet or a straying senator at the sacrifice of stories that “matter.” Anyone who has been the object of media attention “knows” that reporters are sloppy, arrogant, imprecise, agenda-driven, fixated on the negative, and, of course, biased. How could they be anything else, when no minimum education requirements, no licensing system, no mandatory ethics code, no disciplinary body can be used to keep the incompetents and undesirables out? And that’s just the mainstream media. What about those bloggers – the infamous geeks in pajamas, spreading rumors throughout the Internet and railing at anything and everything in cozy anonymity from their shadowy basement lairs, accountable to no one?
How in the world could anyone seriously argue that these people should be granted any kind of testimonial privilege? Does anyone agree with the late Justice William O. Douglas, who wrote that “the press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public’s right to know”?
Despite growing hostility from the judiciary, and an ongoing controversy concerning adoption of a federal reporter’s privilege statute – still being debated in Congress as this issue of the Bulletin goes to press – the idea is neither new, nor novel. Journalists have claimed the right to protect confidential sources since the colonial era. Currently, 34 states, plus the District of Columbia, have enacted some form of statutory protection for the press, and courts in all the states, with the exception of Wyoming, have recognized at least a qualified privilege, as have the majority of federal circuits.
The absence of a federal reporter’s privilege is the anomaly, rather than the rule. But some say 49 states (and the District of Columbia) are misguided or mistaken. The Supreme Court of the United States must be counted among the skeptics. Given an opportunity to recognize a constitutionally-based privilege in 1972, the high court declined to do so, at least on the facts presented in four consolidated cases, all involving situations where reporters had witnessed criminal activity and were ordered to testify about it before a grand jury.
Readers of the Bulletin know that reporters named Jim Taricani, Judith Miller, Matt Cooper, Josh Wolf, James Risen, and Toni Locy, among many others, have faced the prospect of jail, fines, or both, for refusing to cooperate with authorities. Most of the news media have concluded that the time has come to turn to Congress for a remedy. Despite bi-partisan support, their efforts have been vigorously opposed by the Justice Department, the Bush Administration and its legislative supporters. They all claim that a statutory shield law would open the floodgates to a torrent of unauthorized leaks of classified information and undermine the War on Terror.
Proponents of the legislation have made concessions and agreed to carve-outs and exceptions to try to assuage these concerns. But even assuming that a federal shield law could be drafted that Justice could live with, would it be good public policy to recognize a privilege for journalists? Do journalists “deserve” to have a privilege?
In this issue of the Bulletin, Silha Fellow Patrick File, together with Silha Research Assistants Amba Datta and Michael Schoepf, have compiled the “Silha Bulletin Guide to Journalist’s Privilege” to help our readers make up their own minds about what may be the most important issue in media law and ethics of the 21st century. We hope you will find it useful, and we welcome your comments.
(This introduction is adapted from Professor Kirtley’s article, “Reporter’s Privilege in the 21st Century,” which was published in the Winter 2007/2008 issue of Delaware Lawyer magazine.)
– Jane E. Kirtley
Silha Professor and Director, Silha Center