The Right Coast

December 03, 2004
Volokh on The Journalists' Privilege
By Mike Rappaport

Eugene Volokh discusses the journalists' privilege in an op ed in the New York Times. Here is an excerpt:

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.

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.