When the government or anyone else tries to control the public discourse by outing confidential sources, the least the judges can do is ensure they aren’t the only ones who know the whole story. Considering the Reporter’s Privilege … Secretly

Over the past few months, courts across the country have issued a flurry of decisions on whether and to what extent newsgatherers may assert a privilege to protect their confidential sources.

In mid-February, three judges of the U.S. Court of Appeals for the D.C. Circuit announced that “there is no … privilege protecting journalists ... from testifying ... or otherwise providing evidence ... regardless of any confidence promised by the reporter to any source.”  Ten days later, a federal judge in New York reached exactly the opposite conclusion, ruling that “there exists a qualified First Amendment reporter’s privilege with respect to confidential sources.”  And, last Friday, a judge in Santa Clara County, California, issued an opinion apparently acknowledging the privilege — “[t]he journalist’s privilege is not absolute — while rejecting its application to the case at hand — “the ‘claim’ of privilege is overstated in this context.”

Indeed, those multiple rulings over these past few weeks have demonstrated just how much legal disagreement there is about a privilege protecting the use of confidential sources to uncover information and report it to the public.  But even more interesting is the now apparently standard argument by those seeking to eviscerate the so-called reporter’s privilege that courts should force the disclosure of newsgatherers’ secrets based on evidence that itself must remain secret.

Such arguments were advanced in all three of the recently decided reporter’s privilege cases.  In the D.C. Circuit case, which involved a federal grand jury investigation into the alleged leak of a CIA operative’s identity, the special prosecutor filed his evidence under seal to demonstrate the necessity of subpoenaing reporters— and to this day no one has seen it but the court.

In the New York case, which concerned whether a federal prosecutor could subpoena the phone records of the New York Times in order to figure out who might have leaked the details of a terrorism investigation, the U.S. Attorney asked the court to simply trust the government that it had “reasonably exhausted alternative investigative means” before going after the journalists and newspaper. 

In the Santa Clara case, which involved whether the Apple computer company could subpoena bloggers’ e-mail to uncover who might have leaked information about a soon-to-be-released product, Apple presented materials in camera — a legal term meaning “in secret” — to prove to the judge that “a thorough investigation ha[d] been done and all alternative means ha[d] been exhausted” before the company sought to be given the bloggers’ e-mail.

These arguments “against secrecy — except for me” are really nothing more than turning a cliché on its head: “What’s good for the goose isn’t good for the gander.”  And, when the public’s right to know the whole story hangs in balance, such hypocrisy should be summarily dismissed for what it is — a blatant attempt to control what everyone else can and should know.

In the United States, that decision is already made for us by the First Amendment and numerous other laws such as the Freedom of Information Act.  Quite simply, the default position is that we are entitled to know more rather than less — secrecy should be the exception and not the rule.

Don’t misunderstand, there are times when confidentiality in the courts is not only preferable but necessary — issues of national security and legitimate, substantive trade secrets come to mind.

Nevertheless, the public’s right to know comes first in the Bill of Rights.  It surely means that when the government or anyone else tries to control the public discourse by outing confidential sources, the least the judges can do is ensure they aren’t the only ones who know the whole story.  A free and open society demands nothing less.

March 17, 2005
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