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