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December 02, 2004

Press Freedom and Confidentiality of Sources

Fenster Moop writes:

Dear Blowhards,

I'm suspicious of the press when it reports on instances of "journalistic privilege"--the idea that freedom the press implies an absolute right to keep sources confidential, even if the source committed a crime in the transmission of information. I've felt that there's a conflict of interest not too far under the surface here that leads the press to conflate the notion of freedom to publish with insulation from the operation of the law.

The issue has had currency recently, what with the Valerie Plame affair and, now, the case of Jim Taricani, a television reporter in Providence, RI. Taricani has been in trouble with the law over his refusal to turn over to federal prosecutors the identity of a source who, the feds say, illegally passed along a tape dealiing with corruption in city hall.

Does the press sometimes see this from its own point of view? Here's the way the president of NBC News recently framed the issue:

Veteran reporter Jim Taricani, who works for NBC's TV station in Providence, R.I., will be tried tomorrow in federal court on criminal contempt charges. He has a very good chance of being sentenced to jail. His crime: doing his job. A confidential source gave Jim a videotape of a city politician accepting a bribe. The station broadcast it. Ever since, the heavy hand of the federal government has been squeezing Jim in an effort to get him to reveal his source.

Jim, like any professional journalist, is loath to do so. For one thing, he gave his source his pledge of confidentiality. For another, Jim broke no law in accepting the tape, and the station did nothing wrong in airing it. On the contrary, this is precisely what news organizations are supposed to do. The footage gave the citizens of Providence information they deserved to have about city officials who, since the story broke, have been charged, tried and convicted for criminal activity.

I dunno. To me, this seems a little . . . partisan and self-pleading. That's OK, I suppose. Why shouldn't the press be able to get on a soapbox, the same as Colgate-Palmolive, and argue for things that are good for business?

Still, while self-serving bromides are acceptable, clear-thinking analysis is better, and one such was served up today by the prominent blogger Eugene Volokh in the pages of The New York Times. His article on journalistic privilege can be found here.

Volokh does a great job in dissecting the concept of journalistic privilege in legal terms. Basically, the idea is a lot more vaporous than you'd suppose if you relied on, say, the president of NBC News. True, there exists some weak staturory back-up in some states, and there's an emanation from a penumbra on the issue at the U.S. Supreme Court level. But the concept is predominantly a rhetorical device, useful to trot out when rallying the troops, but otherwise more or less flaccid.

Volokh's argument then takes the next logical step: if journalistic privilege is not an idea that is well-grounded legally, should it be? Indeed, Connecticut Senator Christopher Dodd would like to see the idea enshrined in federal law. Maybe that's the right approach?

Volokh does an equally good job in chopping up this idea, too. Volokh argues that, now that the weblog genie is out of the bottle, any blanket privilege is bound to lead to bad consequences.

Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.

The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Yet when everyone is a journalist, a broad journalist's privilege becomes especially costly. The I.R.S. agent, for example, no longer needs to risk approaching many mainstream journalists, some of whom may turn him in. He can just ask a friend who has a blog and a political ax to grind. The friend can then post the leaked information and claim the journalist's privilege to prevent the agent from being identified. If the privilege is upheld, the friend and the agent will be safe - but our privacy will be lost.

Still, according to Volokh, something must be done, given the patchwork approach under state and federal law and the emerging power of the web. But what?

Volokh suggests a limited kind of privilege, based on the nature of the underlyng "transaction" between source and journalist. Whistle-blowing, for instance, would be fine, but the transmission of private tax returns, or information regarding a capital crime, would not be protected.

Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct.

I think that's fine in concept. But is there really any need for the law to explictly deal with a journalist's shield in the first place? Isn't it sufficient to have the law only be clear about the transmission of information rather than the journalistic use to which it is put? I don't think that there are currently grounds to jail a journalist for not disclosing the name of a whistleblower. Whistleblowers can in fact be protected, but the justification for protection is premised on the circumstances surrounding the activity of whistlblowing in corporate life, and need have no bearing on matters related to the press. The press should feel free to extend a guarantee of confidentiality to whistleblowers, but that comfort need have nothing to do with journalism's claims to press freedom.

Likewise, if it's illegal to out a spy or leak private tax returns, those who knowingly abet should be held to account. I don't see that the issue needs to relate to the press as a special category at all.



posted by Fenster at December 2, 2004


I think I agree. It seems to be a complex issue, but maybe it isn't and we've just been convinced it is by the media who want their protections.

I just keep thinking of, say, Frank Serpico. That whole scandal only broke and was dealt with through the NYT publishing his story, and they only got his story because he talked to them confidentially. His life was literally in jeopardy talking on-the-record. And the New York public's safety was in jeopardy over the information he could reveal only confidentially. So...if someone had wanted to strong arm the NYT to "reveal their source" to get at the bribery issue---was it OK to sell Frank out before he was ready to come out? He moved to Switzerland anyway after he testified he felt so uneasy about his safety even after leaving the employment of the police.

Posted by: annette on December 3, 2004 11:43 AM

What an interesting legal hairball, I had no idea. Scary to think of blogs as being "journalistic outlets," although they (or some of them anyway) clearly semi/sorta are. On the other hand, is 2Blowhards? I often pass along things people in various culturebusinesses have said to me, without indicating who they are. I think this is fun and informative -- people inside businesses often know a lot that people outside the business might find interesting. But it's often impossible for people who are currently employed to speak frankly under their onw names. Getting people to go on the record about something is often a surefire way to make them clam up instead of open up. I was once going to edit a magazine, and a column I dreamed of running was one where a person in a given culturebiz would talk (without being identified) frankly about what the biz is like. An opera professional, for example, would just tell us what she knows about how that world operates, without having to worry about jinxing her own position. There's so much that's known, yet that people are unable (for perfectly understandable reasons) to yak about, and it's a pity a little more of this can't enter the general discussion. Offhand, that strikes me as a perfectly OK and ethical thing to do, even if it's also to some extent revealing trade secrets.

But with serious and potentially criminal cases ... I dunno. Like Annette, I wonder what would happen if reporters could easily be forced to reveal sources. Would that cripple "the news"? Sources certainly would start being a lot more cautious. Would that be a good thing for society at large? Hmm.

Posted by: Michael Blowhard on December 3, 2004 12:09 PM


In terms of your hypothetical column by an insider about the real inner workings of his/her field: I would assume the line would have to be drawn in terms of naming names. In other words, if the anonymous columnist said "It is common practice for certain opera impresarios to act the pimp in order to get rave reviews out of certain critics," that would be alright. But if the columnist wrote "Maestro Bellini was seen introducing a certain sweet young thing to....." that would be a no-no.

Posted by: ricpic on December 3, 2004 2:29 PM

My problem with the idea of a special press claim of confidentiality is that it places some elite corps of truth-seekers above the rest of us.

Also, the idea of the press as a special category is going to become absurd on practical grounds. The internet turns everyone into a reporter. People can post anything they want to post about anything they saw or did or heard or received from someone else.

Posted by: Randall Parker on December 3, 2004 7:49 PM

Not to overgeneralise, but the media regularly inflate all media-related stories. Here in Canada, the Globe and Mail (Toronto-based 'national' newspaper) regularly runs stories regarding the circulation figures of other Toronto and national papers as though they were earth-shattering news, or makes much ado over journalists' applications to cover certain legal proceedings they may be barred from.

In many of these cases, the wording may verge on hyperbole, but I think it's a case more of a non-representative sample (ie everyone in the Globe newsroom thinks a drop in the National Post's circulation figures is a big deal, so it gets treated as such even though most of the general public doesn't care) than a conscious or organised plot to inflate the role of the media or grant prestige to journalism.

Though I am not accusing you of doing this, bloggers certainly succumb to the same tendencies of self-indulgence. I know I'm only an undergraduate student, and this perspective is likely to evolve next week or so, but understanding society in contemporary life is increasingly tied to ensuring your interpretations are drawn from a representative sample- ie not just fellow reporters, republicans, red sox fanatics, etc...

Thanks again for the interesting reading, and have a wonderful day.


Posted by: Desmond Bliek on December 8, 2004 1:35 PM

If you look up whistleblower on, is defines the word as:
> n. One who reveals wrongdoing within an organization to the public or to those in positions of authority

Mr. Fenster shoots his whole argument in the foot with his statement:
> I don't think that there are currently grounds to jail a journalist for not disclosing the name of a whistleblower.

Posted by: Laurel Durskine on December 10, 2004 2:01 PM

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