Journalist Privilege?
Here’s a question to challenge the Ricochet community: do you agree with the following case?
Trenton -- New Jersey’s legal protections allowing journalists to keep their sources secret do not apply to those who post to online message boards, the state Supreme Court ruled Tuesday.
The court, clarifying an area of law that has not kept up with advances on the internet, said bloggers must have some connection to "news media" to invoke New Jersey’s shield law protecting journalists from revealing their confidential sources.
"To ensure that the privilege does not apply to every self-appointed newsperson, the legislature requires that other means of disseminating news be ‘similar’ to traditional news sources to qualify for the law’s coverage," Chief Justice Stuart Rabner wrote for the 5-0 court. "We do not find that online message boards are similar to the types of news entities listed in the statute ..."
I’m completely against the shield law.
The chief problem is with that phrase: “self-appointed.” All journalists are self-appointed, or at least the news outlets that employ them. Journalists aren’t licensed, and they shouldn't be. A news outlet is still a self-created, for-profit corporation that needs to be treated as such.
Intellectually, I believe that the First Amendment’s protection of speech is the same for ordinary citizens and for journalists. More, journalists are ordinary citizens, nothing more. They aren’t elected, and aren’t under government control. The law should therefore give them no more privilege than any other citizen.
Second, the privilege of immunity that extends to every other profession … priest in a confessional, lawyer, doctor, etc. … is extended on the condition that those professionals do not reveal what they were told in secret. The journalist, on the other hand, only protects the relationship with the source so that he can publish what was said in secret. It completely turns the privilege on its head.
I’m open to discussion.
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Aug '10
Re: Journalist Privilege?
This post is yet another example of why Ricochet needs a "like" button.
Aug '10
Re: Journalist Privilege?
On the other hand, the right to not reveal sources isn't really about freedom of speech. It's about the right to remain silent. I do not think the state should compel someone to speak when they do not want to.
I mean, what's to stop a journalist from saying, "I got the information because I'm a psychic," or, "I got the document because I'm Batman." There's no way to prove that he/she is lying, right?
A law compelling someone to reveal sources is pretty much unenforceable. If the journalist is truly committed to their principles, you'll never be able to get them to talk (without resorting to torture). All you can do it punish them. In the end, the PR backlash will hurt you more than imprisoning the journalist will help.
Dec '10
Re: Journalist Privilege?
The problem with part of your argument is that the 1st amendment states that "Congress shall make no law...abridging the freedom of speech, or of the press..." it seperates free speech from press freedom. If the press is not shielded in some way from government oversight/intursion then it is far from free. The real problem is that the government is/should never be empowered to compel anything from a citizen whether that person is a member of the established press or not.
Jan '11
Re: Journalist Privilege?
Perhaps, but I'd argue that the journalist can't be "selectively" silent, where he can publish (and cause damage) but won't reveal the source. I say you either publish and reveal sources, or keep your mouth shut.
Here's an interesting twist: a journalist shouldn't be compelled to reveal sources that he doesn't specifically use. With that, I agree. But if you tell your readers that something is true based on the testimony of someone else, you have to reveal that source. You shouldn't be forced to reveal all your sources, even if they were people who gave you their opinion on background.
Is that too tangled a knot to unravel in the real world? I don't think so. All you have to do is point to a specific assertion and demand to know where the journalist got that information. That doesn't require a blanket revelation of all sources.
May '10
Re: Journalist Privilege?
As someone who still carries a press card, there are legitimate reasons for the courts and law enforcement to give quasi-official status to certain organizations.
For example, you wouldn't want "citizen journalists" accompanying police on raids or breaching police lines just because they have possession of a good quality video camera.
As for the shield law, all rights are balanced against each other. Let's say Citizen X is told something about Citizen M in the strictest of confidence by Citizen L. "X" publishes that information. "M" claims that it is false, defamatory and has hurt his reputation and ability to make a living. Does not "M" have a right to face his accuser and fight for his reputation? Does not the status and identity of "L" help establish veracity? Ex-spouse, spurned lover, ex-business partners... identity and motive are key.
Aug '10
Re: Journalist Privilege?
When I read an article where the journalist quotes an "anonymous source", I ALWAYS assume there IS NO actual source. It's just the journalist making stuff up. So I wouldn't support any measure which attempts to compel the journalist to reveal the source. After all, even if they did reveal the source there's no way to know if they're telling the truth. The source can simply deny it.
On the other hand, It gets more complicated when the journalist has received a confidential document, and they refuse to reveal how they received it. I still wouldn't support a measure to compel the journalist to reveal the source, because once again they can simply lie and there's really no way to prove it.
However, I fully recognize that reasonable people can disagree on this point.
Edited on Jun 8, 2011 at 9:29amAug '10
Re: Journalist Privilege?
On the third hand (I'm clearly a mutant), I am sympathetic to more robust enforcement of the Espionage Act, extending to journalists the prohibition on publishing classified information that is harmful to the national security of the United States.
Correct me if I'm wrong, but I believe the law does technically apply to journalists, but that it's never been applied because the government assumes the Supreme Court would throw it out.
Any legal historians able to confirm or deny this?
Jan '11
Re: Journalist Privilege?
With respect, I disagree.
I read that text to say that the prohibitions against Congress making infringing laws are all of the same type - not to say that we should treat each differently. The fact that the same prohibition is enumerated in the same clause with speech, religion, and assembly means that the Congressional prohibition applies to all of them.
Besides, freedom of speech isn't absolute, nor is any of the other freedoms. They're all conditional to circumstances. You can't yell fire, practice religious human sacrifice, assemble whenever or wherever (let's meet at the Oval Office!) you want.
The issue isn't whether the press has free speech rights (they do), but whether their right should have a special privilege, as opposed to the ordinary rights of other citizens.
Jan '11
Re: Journalist Privilege?
EJHill: As someone who still carries a press card, there are legitimate reasons for the courts and law enforcement to give quasi-official status to certain organizations.
For example, you wouldn't want "citizen journalists" accompanying police on raids or breaching police lines just because they have possession of a good quality video camera.
True, but the issue isn't the normal practice of journalism. The issue is whether a journalist can be required to reveal sources where the court finds that what was published genuinely harms someone, and the victim has a right to confront the accuser in court.
It's true that a cop might prudently trust Brian Ross more than the wino from the local bar, but that distinction doesn't justify immunity in court.
Jan '11
Re: Journalist Privilege?
EJHill:
As for the shield law, all rights are balanced against each other. Let's say Citizen X is told something about Citizen M in the strictest of confidence by Citizen L. "X" publishes that information. "M" claims that it is false, defamatory and has hurt his reputation and ability to make a living. Does not "M" have a right to face his accuser and fight for his reputation? Does not the status and identity of "L" help establish veracity? Ex-spouse, spurned lover, ex-business partners... identity and motive are key.
I agree.
But let me add this wrinkle: doesn't this apply equally to ordinary citizens? Why should a press pass alter this logic?
Dec '10
Re: Journalist Privilege?
I've never liked the yell fire example. One is realistically free to yell fire and also free to accept full responsibility for the outcome of the outburst. Each of the examples you cite concern conflicting rights where one takes precedence. One cannot yell fire because it may deprive another of the right to life...one cannot practice religious human sacrifice for the same reason (not so sure about the oval office meeting though). Journalistic freedom has no real conflicting right. If there is one I cannot come up with it. The only thing that conflicts with press freedom is government power (and occassionally the truth...).
May '10
Re: Journalist Privilege?
First, let me say that I am not totally up to speed with the case you cited.
What is the status of the person harmed by the public disclosure? Is it that of another ordinary citizen or a person who makes his living on engaging the public? (Politician, celebrity, etc.) According to SCOTUS in Times v. Sullivan that makes a difference, too.
Yes it is. It's totally about the equivalence between a blogger and a paid journalist, their rights and privileges.
No. What you need to assume is that it is the highest source. Most unsourced quotes usually come from a session that is pre-agreed to be "on background" and confidential. Remember, the Ship of State is the only ship that leaks from the top.
Edited on Jun 8, 2011 at 10:08amJan '11
Re: Journalist Privilege?
EJHill
Yes it is. It's totally about the equivalence between a blogger and a paid journalist, their rights and privileges.
To make a distinction, then ...
I'd agree there is a practical difference when it comes to treating a journalist differently from the general public. A cop would be unwise to allow an ordinary citizen to film a dangerous drug bust, where he might allow a journalist. But those are purely prudential judgments, not requirements of law. Not even a famous journalist has a right to go wherever he wants. If a journalist demands to accompany a drug bust, the cops have every right to deny it, just like with any other citizen.
May '10
Re: Journalist Privilege?
I just read the article you linked to. The difference here seems to be that she made the allegations on a message board, not in an online article. Under this distinction anything we say "above the fold" here is protected but anything said afterwords in the comments section is not.
Jan '11
Re: Journalist Privilege?
I just wonder: Why should anything be protected?
Now don't get me wrong, I'm not arguing what the law actually is ... I'm not a lawyer. I'm advocating for what the law should be. And with that proviso, I don't think there should be a legal distinction between an ordinary citizen and a journalist. Further, I don't think the Constitution admits of a distinction, either.
I'll happily agree that an independent press is a key component to a functioning society. But that doesn't justify everything and anything under the sun. And in this specific case, I don't think we should have a law that protects journalists from being forced to reveal their sources for something that damages others. The right to confront an accuser is far more important than the right of any reporter to keep a source hidden.
May '10
Re: Journalist Privilege?
Don't you think the need for "whistle-blower" statutes are self-evident? Or would you prefer that there be no protections?
Aug '10
Re: Journalist Privilege?
So far, I'm with KC. I don't see why the law should distinguish between journalists and ordinary citizens in this regard.
That journalists protect their sources is a respectable tradition, but a respectable tradition is not in itself a right.
For a source to trust an "official journalist", as opposed to some other citizen who makes reports, to not reveal the source seems a prudential judgment, not a special right.
Aug '10
Re: Journalist Privilege?
EJHill
Don't you think the need for "whistle-blower" statutes are self-evident? Or would you prefer that there be no protections?
I'm confused. Is a whistle-blower the same thing as a licensed journalist?
May '10
Re: Journalist Privilege?
It's all about protecting sources. A question I would have for the New Jersey case is whether or not the citizen's source had the same expectation of privacy had that person gone to newspaper journalist or even expected the blogger to use that information in the manner that she did.
Aug '10
Re: Journalist Privilege?
As far as I know, there is no such thing as a "licensed" journalist.