Journalist Shield Laws Make No Sense
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Ever since I was a law student sitting in Evidence class trying to sort out the various rules regarding testimonial privilege, I have tried to understand why we entertain the concept of a "journalist's privilege."
To me the analysis is more simple than the current debate would suggest: If you believe in a testimonial privilege, then you must by definition believe that those protected by such laws are themselves "privileged" people.
Why should we think this regarding journalists? How exactly are they "privileged people"?
Lawyers are indeed privileged people with respect to their clients — justice is thwarted otherwise. Physicians are indeed privileged people with respect to their patients — healthcare is thwarted otherwise. Clerics are privileged people with respect to their penitents — spirituality is thwarted otherwise. Spouses are indeed privileged people with respect to each other — familial comity is thwarted otherwise. (SIDEBAR: Try telling gays to somehow replicate that through contract!)
Now try extending that reasoning to journalists with respect to their sources. What exactly is being "thwarted"?
Freedom of the press? No. Freedom of the press means the right to say what you want, when you want, the way you want. The source has nothing to do with it.
Whistleblowing? No. Whistleblowers have other options and other protections.
The ability to undermine your employer? Are we sure that's something we don't want thwarted?
Note how journalist shield laws turn privilege on its head — all other forms of testimonial privilege are meant to protect the conveyor of the information (i.e., the client, patient, penitent or accused spouse), not the witness (i.e., the lawyer, physician, cleric or confidant spouse). Journalist shield laws are backwards — they protect the interests of the journalist, not those of the source.
The journalists themselves (e.g., the New York Times editorial board) insist that shield laws would not apply to protecting those engaging in criminal conduct. But again, that's exactly why we have the other, higher forms of privilege — to protect the conveyor of the information from criminal or civil liability. If we're not granting that same protection to a journalist's source, then why bother in the first place, except to protect the journalist?
I was never particularly impressed with the Fourth Estate even before I became a blogger; I'm even less impressed with it having become a blogger. I simply don't think they're as important as those who currently enjoy privilege. One can love freedom of the press without loving reporters.
To me the analysis is more simple than the current debate would suggest: If you believe in a testimonial privilege, then you must by definition believe that those protected by such laws are themselves "privileged" people.
Why should we think this regarding journalists? How exactly are they "privileged people"?
Lawyers are indeed privileged people with respect to their clients — justice is thwarted otherwise. Physicians are indeed privileged people with respect to their patients — healthcare is thwarted otherwise. Clerics are privileged people with respect to their penitents — spirituality is thwarted otherwise. Spouses are indeed privileged people with respect to each other — familial comity is thwarted otherwise. (SIDEBAR: Try telling gays to somehow replicate that through contract!)
Now try extending that reasoning to journalists with respect to their sources. What exactly is being "thwarted"?
Freedom of the press? No. Freedom of the press means the right to say what you want, when you want, the way you want. The source has nothing to do with it.
Whistleblowing? No. Whistleblowers have other options and other protections.
The ability to undermine your employer? Are we sure that's something we don't want thwarted?
Note how journalist shield laws turn privilege on its head — all other forms of testimonial privilege are meant to protect the conveyor of the information (i.e., the client, patient, penitent or accused spouse), not the witness (i.e., the lawyer, physician, cleric or confidant spouse). Journalist shield laws are backwards — they protect the interests of the journalist, not those of the source.
The journalists themselves (e.g., the New York Times editorial board) insist that shield laws would not apply to protecting those engaging in criminal conduct. But again, that's exactly why we have the other, higher forms of privilege — to protect the conveyor of the information from criminal or civil liability. If we're not granting that same protection to a journalist's source, then why bother in the first place, except to protect the journalist?
I was never particularly impressed with the Fourth Estate even before I became a blogger; I'm even less impressed with it having become a blogger. I simply don't think they're as important as those who currently enjoy privilege. One can love freedom of the press without loving reporters.
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Posted by KipEsquire on
21 July 2005
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