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Battles over the reporter’s privilege have been generating headlines, with then- New York Times reporter Judith Miller going to jail and reporters for the San Francisco Chronicle now facing a similar fate. But the flurry of attention surrounding a handful of cases should not lead to an ill-advised congressional response. Privileges have costs. Because they shield relevant evidence, they may lead to errors or injustice. Before creating new privileges, therefore, we should be fairly confident that the resulting benefits will outweigh those costs. The reporter’s privilege inspires no such confidence. IMPERVIOUS TO CHILLS The principal argument in support of the privilege is that without it, confidential sources will not speak to reporters for fear of having their identities revealed. This claimed “chilling effect” will supposedly hamper the ability of the press to dig out sensitive information and transmit it to the public. Yet in the absence of a federal privilege law, investigative journalism is thriving and leaking is rampant. Even while reporters were being forced to testify in the high-visibility Valerie Plame investigation, a steady stream of new leaks was leading to stories about secret CIA prisons, Abu Ghraib, and domestic surveillance by the National Security Agency. From all appearances, sources are quite impervious to the chills. When sources do request confidentiality, their most immediate concern usually is that their names not appear in tomorrow’s paper. Even without a privilege, journalists are free to promise sources that they will not name them and will never identify them unless a court orders them to do so — which very rarely happens. In the overwhelming majority of cases, such a promise can satisfy any reasonable expectation of confidentiality. Even if there were an ironclad privilege, leaking would hardly be risk-free. A leaker is actually more likely to be discovered through means that do not involve the reporter’s testimony, such as an internal company investigation. A source willing to brave these more immediate and substantial risks is unlikely to change her mind based on the far more remote chance that a court might someday force the reporter to testify. The final strike against the chilling-effect argument is that any leakers who are deeply concerned about exposure can simply choose not to identify themselves to the journalist. You can’t have an anonymous communication with your attorney, spouse, or doctor, but you can give an anonymous tip to a reporter. ABOVE THE LAW Nor will a privilege law keep journalists from being locked up. In jurisdictions that recognize a privilege, reporters still go to jail. Most privileges — including the one in the proposed federal statute — are not absolute, and a court may override the privilege if the need for the information is sufficiently compelling. When that happens, reporters routinely refuse to obey court orders to disclose the information and are jailed for contempt. With regard to the proposed federal privilege law, the Reporters Committee for Freedom of the Press has argued that if a court denied the privilege in a specific case, a reporter may still refuse to testify and go to jail to protect a source. This may be a first: asking Congress for legal protection while vowing to defy that law yourselves if it is enacted. Reporters would still expect their adversaries to honor court orders that uphold the privilege, but would likely refuse to do the same when a court rules that the reporter must testify. Even now, reporters aren’t jailed for “doing their jobs,” as privilege supporters claim, but for placing themselves above the law. A privilege statute won’t keep reporters out of jail if they refuse to honor court decisions interpreting the statute. BLOGGERS, TOO? Finally, there is the problem of deciding who may claim the privilege. The essence of journalism is gathering information to disseminate to the public. Today almost anyone can do that. The stereotypical pajama-clad blogger may inform far more people than many newspaper reporters. A privilege law that applied to everyone who transmits news to the public in the Internet age would be impossibly broad. But the alternative is to have Congress and the courts choose the “real” journalists deserving of this legal protection. This government anointing of a favored class of journalists would be incompatible with First Amendment values. It would inevitably tend to favor the traditional mainstream media over less established upstarts. Technology has transformed journalism and has eroded the traditional lines between the institutional press and the overall public marketplace of ideas. As those lines break down, so does the rationale for special legal protections for the press not enjoyed by the millions of other contributors to the information age. A reporter’s privilege is unnecessary and unworkable, a messy solution in search of a problem. A vigorous free press is vitally important, but the federal reporter’s privilege law is still a bad idea.
Randall D. Eliason teaches white-collar criminal law at American University and George Washington University law schools in Washington, D.C. His article “Leakers, Bloggers, and Fourth Estate Inmates: The Misguided Pursuit of a Reporter’s Privilege” appears in the most recent issue of the Cardozo Arts & Entertainment Law Journal .

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