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The First Amendment is not a blank check
Law, National Politics Comments (10)
Today’s New York Times has an op/ed piece that starts off:
The First Amendment suffered a blow in October when a federal trial judge sentenced two reporters to prison for up to 18 months each for refusing to comply with subpoenas to reveal their confidential sources before a federal grand jury.
Here we go again. You can feel it coming. And, of course, it does:
Mr. Fitzgerald’s inquiry has evolved into a major assault on the confidential relationship between journalists and their sources, which was of critical importance in exposing the very abuse of governmental power that prompted Mr. Fitzgerald’s involvement in the first place.
Where does this protection against revelation come from? Here’s the relevant part of the First Amendment:
Congress shall make no law … abridging the freedom of … the press
This not a blank check. There is no mention of confidential sources there. It merely means that Congress cannot pass a law which tells the press that they cannot print something.
Case law?
The Reporters Committee for Freedom of the Press has this to say in their First Amendment Handbook:
The issue of whether the First Amendment creates a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes, 408 U.S. 665 (1972). The Court ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries if they actually have witnessed criminal activity.
They go on to combine two seperate opinions in Branzburg (one of which was joined by two other justices) and a dissent to create a “majority” opinion which recognizes some form of immunity. Yet, just this past week in another New York Times op/ed piece, UCLA School of Law professor Eugene Volokh states: “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.”
Yet today the Times is up at arms. Why? Because they’re afraid that they’ll be forced to reveal a source and future sources might be more reticent to come with information to drive sales or ratings.
Just like the First Amendment is not a blank check that allows journalists to do anything they please, there also must be a realization that there are, in fact, some people who possess knowledge that might be of passing interest to the public but whom society itself must not countenance producing that knowledge. Professor Volokh deals with this as well:
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.
Such a rule may well deter some sources from coming forward. But they will be the very sources that society should want to deter, to protect privacy and safety. In any event, the rules should be the same for old media and new, professional and amateur. Any journalist’s privilege should extend to every journalist.
Exactly.
MickC @ December 5, 2004
“Yet today the Times is up at arms. Why? Because they’re afraid that they’ll be forced to reveal a source and future sources might be more reticent to come with information to drive sales or ratings.”
…or provide valuable information contibuting to a better informed readership. Let’s not let our cynicism get TOO far out of control.
The First Amendment is not a Blank Check
[The other day, The] New York Times [had] an op/ed piece that start[ed] off: The First Amendment suffered a blow in October when a federal trial judge sentenced two reporters to prison for up to 18 months each for refusing…
In this instance, the information being fought over is the identity of the administration official who intentionally broke a federal law designed to protect the life and safety of clandestine operatives. That information might be of passing curiousity, but it does nothing to create a more informed readership unless you buy completely into Bob Novak’s assertion that Valarie Plame and her husband orchestrated his trip to Niger with the specific intent of giving the administration a black eye.
If forcing a journalist to give up that name causes others who know the identity of clandestine operatives to think two or three times before divulging that information to a reporter then I fail to see how this is a bad thing.
My ability to make an informed judgement on the extent to which I “buy into” that may depend, in part, on the information we’re discussing.
My more general point was that, in my experience, journalists tend to be more interested in journalism – getting the story, getting it right, and getting it out – than in “driving sales or ratings”. I realize it’s an article of faith on the right that all journalists critical of the Bush regime are, ipso facto, only interested in personal glory, profit, or bringing down the government. But that ain’t really so.
That’s the point that Prof. Volokh is making and with which I agree. Yes, there is some information out there that is protected for one reason or another which does need to be divulged. Say, for instance, plans on the part of the government to do something illegal. There needs to be something codified that will protect the identity of the whistleblower who talks to a reporter.
On the other hand, there is other information which should not be disclosed because there are good reasons behind the statutory provisions which prohibit disclosure. My tax returns, Senator Kerry’s Vietnam-era medical records and the identities of clandestine operatives are three such provisions.
But, most journalists get into journalism in order to “make a difference” not for the glory of reporting items that end up on the back page of the lifestyles section. Sometimes, that is good (like in the story I linked). Sometimes it is not.
Not a single journalist that I know (and I do know many) got into journalism to be more like Nora Rivera-Bobo (whom you have never heard of) instead of Edward R. Murrow (who, despite his own humility, was well known and typifies the glory that is to be found in journalism).
That’s true of all journalists, no matter their political stripe.
Two different items under discussion here; the core motivation of journalists (which, we seem to agree, is not primarily to sell newspapers, but to make a difference) – and the ethics of reportage relating to confidential information, about which I haven’t commented.
You’re right. Who the hell is Nora Rivera-Bobo?
Actually, I guess there are three. The motivations of the journalists, the motivations of the papers involved, and the ethics of reporting certain items.
My accusation here is that the New York Times, not necessarily even the reporter(s) they’re writing about, want a more expansive privilege than they should be entitled to. As it is now, if you believe the New York Times, you have greater confidentiality of information given to a reporter than you do what is given to the attorney who must defend you in court.
Nora Rivera-Bobo is a reporter for the Andrews County News. That’d be the newspaper for the town where I grew up.
“Exactly”?! Society does *not* want to deter some illegal leakers. Prof. Volokh’s views are inexplicable. See my Yearning for Mechanical Rule.
The fact remains that the law depends upon bright line rules for such things as privileges. There is a reason why those are good things. That reason is the ability to ascertain which side of the privilege you are on.
What I think is inexplicable is why reporters should have more rights for their sources under the First Amendment than an accused does with his attorneys under the Sixth Amendment.
In which is society more greatly vested? Having fair and impartial trials using fully informed and prepared counsel or having reporters able to enable the violation of statutory law?
IMO, there is no need for such a question because reporters and their sources should be as similarly limited as attorneys are with their clients.
Oh, THAT Nora Rivera-Bobo.