By Geoffrey R. Stone
The New York Times
Feb. 21, 2007
Excerpt:
As the new Democratic Congress moves ahead decisively on a panoply
of issues, it should confront a particularly pressing one: freedom of
the press. Congress should expeditiously enact a federal
journalist-source privilege law, which would protect journalists from
compelled disclosure of their sources’ confidential communications in
the same way psychiatrists and lawyers are protected. Importantly,
neither Congress nor the press should be unwilling to compromise when
the alternative is to forgo such a privilege altogether.
A strong
and effective journalist-source privilege is essential to a robust and
independent press and to a well-functioning democratic society. It is
in society’s interest to encourage those who possess information of
significant public value to convey it to the public, but without a
journalist-source privilege, such communication will often be chilled
because sources fear retribution, embarrassment or just plain getting “involved.” […]
So how would a qualified
privilege work at the federal level? The issue most often arises over
matters of national security. Suppose, for example, a journalist
reports that she has been informed by a reliable source that an
unidentified major building in New York City will be blown up by
terrorists the following day. It would seem irresponsible, indeed
insane, to allow the reporter to refuse to disclose the identity of the
source. Certainly, the government has a compelling interest in forcing
the reporter to reveal the name of the source so it can attempt to
track him down and possibly prevent the attack.
The trouble is that even in this situation, the matter is not free
from doubt. Without the protection of an absolute privilege, the source
might not have been willing to disclose the information to the reporter
in the first place. Public officials are certainly better off knowing
that a threat exists, even if they do not know the identity of the
source, than knowing nothing at all. Thus, breaching the privilege in
even this seemingly compelling situation might in the long-run prove
counterproductive to protecting national security.
such situations are more hypothetical than real, and they should not
determine the shape of the privilege we enact. If the press has to
compromise by endorsing a law that would enable the government to
pierce the privilege in order to address an imminent and grave threat
to national security, it should do so.
