An Almost Fair Assessment

William Safire nearly brings himself to honestly portray another side to the ongoing reporter/shield law controversies: Judges as Plumbers

Safire writes about the continuing BALCO case out in California, and the leaking of secret grand jury testimony.

Stipulated, as lawyers say, that grand jury testimony is secret, protecting the privacy of reluctant witnesses. If the source violated an oath, that was wrong. But it is the publication's obligation to the public to publish what it considers newsworthy - and not to assist the government in punishing the provider of that news.

Counters the court cohort of coercion: isn't every citizen obliged to give sworn testimony to help the government enforce the law?

The answer is no. Government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this "privilege" to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust. Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist (as more than 30 states now do through "shield" laws).

I will give Safire credit for at least implying that reporters should have to make a case for their being granted special supra-legal standing. In the end, however, he still acts as if the case can be made prima facie that the relationship of reporter/leaker should enjoy the same protections as the husband/wife or doctor/patient relationships. It simply isn't that clear.

Notice the jumps in Safire's logic. In every other relationship he mentions, the importance of trust existed between the two parties originally privy to the information, but for the press, the "trust" involved is presented as being not between the reporter and the leaker but as being between the press and a third party (i.e. the "public.") Why doesn't he stress the reporters relationship to the leaker? Because, if he did his case becomes weaker. It is obvious that the relationship between reporter/leaker shares little in common with the ongoing relationships of trust to which Safire wishes to compare it. Furthermore, the entire basis of the relationship is different. Confidentiality of the information is what is protected in the other cases. For example, we can know the names of the spouses, or the priest and penitent, or the doctor and patient, it is the information generated by those relationships that is protected. This is in no way analogous to the reporter/informant relationship. There the information is meant to be disseminated by one of the parties involved, and it is only the identities that is to be protected. This is not to say that there shouldn't be any protection. This is to say that you will need to come up with a better reason for such protection than merely claiming that the reporter/leaker relationship is the same or analogous to that of husband/wife. It clearly isn't.

The public's "right to know" that reporters go on and on about, also extends to the "right to know" who has been breaking its laws. Reporter's don't seem nearly as keen to inform the public of this. It's at least partly because they have a vested interest. Reporters that can get their hands on secret information have the ability to "make a name" for themselves. It is a route to money, prestige and power. Of course they wouldn't want this tool taken away from them. However, they would be better served by not treating it as a near absolute. Not all leaked information is in jeopardy, because not all leaking constitutes in itself a crime.

Nor is all leaking noble. It is possible to imagine the leaking of grand jury testimony that is meant to intimidate witnesses, thereby helping organized crime avoid justice. It is possible to imagine the leaking of a government secret that results, intentionally or not, in the murder of agents working for the U.S. in hostile places. These are the very reasons that such specific information is made secret in the first place, to protect the interests of "the people."

Besides, what are the limits here anyway? Should the New York Times be able to conduct espionage against the government? Does the press get a free ride to pick and choose which laws they feel like abiding by? All Safire would concede is that the press cannot hold back on information leading to someone's murder. Thank heavens for small favors.