CULTE-Times: Journalistic shield laws

Herewith some recent samples of my vast store of Collected Unpublished Letters To the Editor of the New York Times. (The frequency with which bcc recipients of my submissions encouraged me to start a blog has much to do with the long-delayed appearance of The Wise Bard (TWB).)((.))<>!

Submitted March 8, 2007 (slightly revised):
To the Editor:

Re: Anthony Lewis’ “Not All Sources Are Equal” (op-ed, March 7) and Adam Liptak’s “After Libby Trial, New Era for Government and Press” (news analysis, March 8):

As a professor of both law and of medical ethics, I study, teach, and try to understand norms of confidentiality and privilege in lawyer-client and doctor-patient communications, as well as in other professional contexts. As a general matter, I support some form of (qualified) federal legal protection for communications between journalists and their sources, to further the public interest.

Neither the lawyer-client nor the doctor-patient privilege (in either their common law or their statutory formulations) is absolute. There are some clear exceptions, and there are a number of boundary-line areas that are murky indeed, and require careful, often after-the-fact balancing of competing interests when cases end up in court. Being a professional is not always easy.

Those advocating a federal shield law for journalists (whether via federal statute or judicial action) would do well to abandon claims to an absolute privilege and recognize that they will not be able to offer absolute assurances of protection to all their sources. If psychotherapists can learn, under the Tarasoff case, to provide “Miranda warnings” to their mental health patients, journalists and their sources can learn to live with a margin of uncertainty.

My guess is that the public would be much more supportive of efforts to protect a vulnerable whistleblower seeking to bring governmental abuses to public attention than a high governmental official using confidential leaks to credulous journalists (or working hand-in-glove with their media attack dogs) to escape accountability for taking reprisals on political opponents (or seeking to sabotage their election prospects late in the campaign season).