Freedom of the press is great if you own one*

by John Quiggin on June 28, 2005

The US Supreme Court has declined to hear a case in which journalists have appealed against a ruling that they should either reveal anonymous sources or go to jail. A noteworthy feature of the NY Times treatment of the story is the presentation of the issue in terms of whether journalists are entitled to special protection not available to bloggers. At the end of the story Rodney A. Smolla, dean of the University of Richmond School of Law is quoted as follows

The federal judiciary, from the Supreme Court down, has grown very skeptical of any claim that the institutional press is deserving of First Amendment protection over and above those of ordinary citizens … The rise of the Internet and blogger culture may have contributed to that. It makes it more difficult to draw lines between the traditional professional press and those who disseminate information from their home computers.

The failure of journalists to establish a special exemption raises the more general question of whether and when people should be compelled to reveal details of their private conversations. If constitutional limits are to be imposed on such questioning, it may be better to derive them from the right to privacy in general rather than the specific claims of the press. Alternatively, and perhaps preferably, it might be better for the legislature to provide a public interest exemption of some kind.

On the same topic, I was going to respond to this piece by Margaret Simons about bloggers and journalists but, as often happens, Tim Dunlop has written exactly what I would have said, only better.

* And nowadays everyone does

{ 11 comments }

1

rea 06.28.05 at 7:47 am

Really, the case is awful one in which to argue for reporter confidentiality. Cooper and Miller essentially witnessed a crime in progress–why can’t they be made to testify about it like everyone else?

Lawyers, doctors, and priests all traditionaly have the type of privilege to which the reporters aspire (well, actually, all these privileges belong to the source/client/patient). None of the privileges go as far as the one the reprters are now claiming.

I’m a lawyer. If a client confesses a past crime to me, I’ll never tell, and I can’t legally be made to tell. If a client tells me about a crime in progress, though, or a future crime, or asks me to give him legal advce that will help him commit a crime–well, that’s not confidential at all.
Why should any hypothetical reproter privilege work differently?

2

joel turnipseed 06.28.05 at 8:15 am

I hesitate to sound like a reactionary Bork-ian originalist, but isn’t the referent of the first amendment’s “press” the object (and associated act of using it) and not the institution? I can understand the reason why journalistic privilege is covered under 1st amendment (breach would be de facto censorship), but couldn’t a blogger present a pretty good case that their sources are just as confidential as a journalist’s on the same lines–and that their freedom to “print” is just as sacred (after all, the “press” in 1791 was more like blogging than the corporate MSM)? I guess I’m not sure what the blog angle is here… I think it’s just an historical coincidence that we’ve associated the law with the institutions–from my understanding of the Constitution, a breaches of any citizen’s ability to print is a breach of the 1st amendment, no? Help me out here constitutional lawyers…

3

Jason G. Williscroft 06.28.05 at 8:23 am

“If constitutional limits are to be imposed on such questioning, it may be better to derive them from the right to privacy in general rather than the specific claims of the press.”

I’m interested in how you propose to conduct this derivation, since the Constitution does not guarantee anything like a “right to privacy in general.”

4

jjoats 06.28.05 at 10:20 am

Other Costitutional TOON O’THE DAY fodder Kentucky Constitution Solution

5

bi 06.28.05 at 10:30 am

Hey Williscroft, what are the passwords to all your computer accounts?

6

rea 06.28.05 at 11:19 am

“the Constitution does not guarantee anything like a ‘right to privacy in general.'”

Well, fortunately for us all, the Supreme Court has disagreed with you, in a line of decisions dating back to the 50’s . . .

The constitution provides for an island of governmental powers in a sea of rights, not an island of rights in a sea of governmental power.

7

Sebastian Holsclaw 06.28.05 at 12:03 pm

I don’t think we need to get into a huge privacy jurisprudence discussion on the issue when there is a perfectly on-point Constitutional right which as Joel points applies to all citizens and not just mainstream-media reporters.

8

Jayanne 06.28.05 at 12:35 pm

C6,”Well, fortunately for us all, the Supreme Court has disagreed with you,”

Not really (I know you’re a lawyer), the Court’s “found”/invented a right of privacy. I wish they’d ruled the same way in Griswold etc. but on different grounds (Harlan’s, say).

C7 (after 2) “I don’t think we need to get into a huge privacy jurisprudence discussion on the issue when there is a perfectly on-point Constitutional right which as Joel points applies to all citizens”

I find this interesting. I’d always assumed — without thinking too much about it — that “the press” meant “the established media”. But I see it can’t. (Thank you both.) And here I find a statement to that effect:

http://www.law.cornell.edu/topics/first_amendment.html

9

bryan 06.28.05 at 1:43 pm

If there were such a thing as natural rights, which I believe there may well be, then perhaps one likely such right is the right not to divulge what was said to one in confidentiality.
Thus a reporter would have the same right as a blogger or as a lawyer.

10

Seth Finkelstein 06.28.05 at 1:55 pm

My sense is that this issue is one where the analysis and discussion is driven more by what people want to talk about – the sexy “BLOGGERS VS. JOURNALISTS!”, rather than the actual law involved.

The “press” privilege is quite limited, but people think it’s far more extensive than it is. Some recent cases have pushed this distinction into the public mind. But it doesn’t have much to do with bloggers _per se_. There’s an issue in that some of these decisions will have a sentence or two which say “Look, if anyone could get out of testifying by claiming to be “press”, then everyone would claim that, especially these days – so that can’t be true” – which is then immediately shouted as “BLOGGERS VS JOURNALISTS!”.

The problem, as has been touched on above, is a very nuanced issue of when people can be compelled to testify.

Disclaimer: I am not a lawyer.

11

Andrew 06.29.05 at 8:32 am

A couple of things:

First, I think that the original post is misleading about the NYT story. Said story includes the following quote from a law school dean: “The rise of the Internet and blogger culture may have contributed…” But the NYT story isn’t as focused on blogging as the post makes it sound.

Second, my impression of the bloggers/journalists debate is that the current of “Bloggers have no special protection, so why should journalists?” is getting stronger. I myself am more in sympathy with the current of “Journalists can protect their sources, and bloggers should also be able to.”

I should add this this is the unscientific impression someone who is neither a lawyer nor a journalist (but who is a blogger).

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