Journalistic privilege

Cross posted at Political Arguments.

Eugene Volokh, of the eponymous conspiracy, has an Op-ed in today's New York Times on journalistic privilege. He extends the definition of journalist to bloggers in general, with which I still have problems—perhaps because my father is a former journalist, or because I to old-time professions.

But that's not the punch of Volokh's piece. Rather, he proposes a broad, but limited form of journalistic privilege modeled after spousal and attorney-client privilege.

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What's the answer? On the one hand, tips from confidential sources often help journalists (print or electronic) uncover crime and misconduct. If journalists had to reveal such sources, many of these sources would stop talking. On the other hand, some tips are rightly made illegal.

The best solution may be to borrow a principle from other privileges, like those for confidential communications to lawyers, psychotherapists and spouses. The law has generally recognized that protecting the confidentiality of such communications is more important than forcing a person's testimony.

But it has also limited the privilege. Communications that facilitate crime or fraud, for example, are not protected. I may confess my crimes to a lawyer, but if I try to hire him to help me commit my crime, he may be obligated to testify against me.

Maybe a journalist's privilege should likewise be limited. Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act—for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published—then the journalist may be ordered to testify.

I've been in favor of the formal recognition of journalistic privilege for a long time and, on this sort of thing, I'm usually an absolutist. But Volokh's proposal seems eminently sensible. Privilege exists because legislators seek to protect a particular kind of relationship—between spouses, say, clergy and parishioners, or attorneys and doctors and their clients—because of its perceived social importance. A robust and zealous press is necessary in a liberal democracy, but a press that serves as subterfuge for illegal activity is no more laudable than a consigliere.

Go read the whole thing!