Bench Memos

NRO’s home for judicial news and analysis.

About That Shield Law


Bill Bennett has been talking constantly about this issue, for two days straight, and today Seth Leibsohn and Andy McCarthy weigh in on the House bill that would relieve journalists (the “professional” ones, anyway) of their civic duty to provide evidence and testimony in leak investigations and other criminal cases.  (See also Gabriel Schoenfeld at the Weekly Standard.)  Herewith some further thoughts.

One of the arguments employed by backers of shield laws is that a journalist-source privilege is like other kinds of privilege we already respect in courts of law: spousal, priest-penitent, attorney-client, and doctor-patient.  But it’s not like those other privileges at all.  The word “privilege” derives from the Latin for a private or peculiar law, in other words a rule advantaging a peculiarly private space or relationship and (in our present context) shielding it from prying eyes.  But the essential thing is that the shield is put in place for the sake of a private relationship that will not flourish otherwise.  It is not exactly true that a public good is the object of the privilege, unless it is the public good of not making everything a public concern–of preserving the integrity and purposes of the private relationships in question.

Because we honor and wish to preserve the intimacy and union of husband and wife as essential to the family itself, we have a spousal privilege in many legal contexts.  Because the penitent bares his soul to the priest, we respect a sacred space in the confessional by not asking the priest to divulge what is said there.  Because the good of the patient’s health is the purpose of the doctor-patient relation, we shield the doctor from testimonial requirements.  And because attorneys can only represent their clients effectively if the latter are candid in ways they would not dare to be in public, we honor this privilege too.  In each case the party shielded–spouse, priest, doctor, lawyer–would be privy to evidence of a crime only incidentally to the relationship honored in the privilege.  And the party whose interests are protected by the shield–the other spouse, the penitent, patient, or client–is vulnerable to having the purposes of the private relationship frustrated or destroyed if the shield is withdrawn.

In practically no way is a journalist-source privilege assimilable to these others.  The relationship is established not for private purposes but for a public one.  No private benefit is given or received.  The source and reporter often claim a high-mindedness for themselves, but it is a claim to be benefitting the public, not the pecular interests of one or both parties in a relation whose private integrity is the core principle at stake.  The point of the encounter between the journalist and the source is to tell a secret, not to keep one.  All that the journalist wishes to shield is his source’s identity–the one fact nearly always known in the other relationships to which privilege attaches.  The vulnerability of a source, protected by a journalist’s privilege, is frequently the vulnerability of a criminal (or at least of a disloyal betrayer of secrets his superiors expected him to keep).  And the crime or betrayal was the purpose of establishing the relationship with the journalist.  The leaker whom the reporter protects is a breaker of oaths, and any obligation the reporter takes on to keep an oath to the leaker is not one the rest of us are bound to respect.

Finally, apart from the spousal privilege, which is a reciprocal one between equals, all the other legitimate privileges are one-way relationships, in which one party receives a benefit the other gives.  The penitent receives reconciliation, the patient receives medical care, the client receives legal counsel.  The benefactors (priest, doctor, lawyer), in terms of strict principle, give all and receive nothing in the relationship.  Where does the reporter stand in the relationship with his source?  As the beneficiary as much as or more than as the benefactor.  Reporter and source strike a bargain of mutual self-interest, the source’s axe to grind serving the reporter’s Pulitzer hopes or ideological agenda, and vice versa.  When the interests of justice and national defense are frustrated by covering this with a veil of secrecy, it’s a corrupt bargain indeed.  And it certainly does not deserve the solicitude of the U.S. Congress.


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