At the core of the Robert Novak/Karl Rove/Matt Cooper/Judith Miller morass is a vacuum. It is the vacuum created by the steadfast refusal of Congress to enact a federal journalist-source privilege. Although forty-nine states and the District of Columbia have recognized some version of this privilege, Congress stands mute. Its failure to act has not only produced the quagmire of the Plame affair, but has also undermined our democratic system.
The logic behind the journalist-source privilege is inescapable. Throughout the law, we recognize that individuals in some circumstances decline to speak the truth if they are not protected against the consequences. To encourage them to be forthright, we establish privileges. The Constitution privileges members of Congress for what they say on the floor of the Congress. An Executive Privilege protects communications among members of the Executive Branch. Every jurisdiction in the nation has an attorney-client privilege to protect clients when they seek legal advice from their lawyers, and almost every jurisdiction has some form of doctor-patient or psychotherapist-patient privilege. In all of these (and other) settings, the law gives speakers (clients, patients, congressmen, vice-presidents, etc.) the right to forbid others to disclose their confidences in order to foster free and open communication.
The same logic compellingly justifies a journalist-source privilege. We depend on the press to inform us. We want a congressional staffer who suspects a Senator of taking a bribe to disclose this to a reporter; we want a corporate employee who knows his corporation is manufacturing unsafe products to reveal this information to a journalist. To protect such whistleblowers from retaliation, we must allow them to disclose this information without fear that the reporter will later be compelled to reveal their identity. Quite frankly, there is no rational reason not to create such a privilege, and it is irresponsible not to do so. Without the privilege, many sources won’t come forward at all, so the effect of the privilege often deprives the court of no information it would have had without the privilege. It is for that rather obvious reason that forty-nine states and the District of Columbia have some form of journalist-source privilege.
The absence of a federal privilege completely mucks up the works. A source speaking with a reporter in New York has no way of knowing whether a lawsuit or prosecution arising out of her disclosure will be filed in state or federal court. If there is a state proceeding, the New York privilege attaches. If there is a federal proceeding, there is no privilege. This places sources and reporters in an intolerable position. Uncertainty breeds fear, and fear breeds silence. And silence in such circumstances is precisely what we do not want.
It is time for Congress to get its act together and to enact a strong federal shield law. The precise terms of such a law are open to reasonable debate. Some states have an absolute privilege; others allow the privilege to be overcome if the prosecutor can demonstrate substantial or compelling necessity. There is also the thorny question of who gets to assert the privilege. If a reporter for the New York Times can invoke the privilege, what about a social scientist at the University of Chicago, or a blogger in Seattle? And then there is the particularly nasty question raised by the Plame leak: Should the privilege apply at all when the “source” is not a whistleblower conveying useful information to the public, but a criminal who is using the leak itself to violate the law?
These are tricky issues, but they can all be resolved, albeit imperfectly, in legislation. But with a federal shield law in place, journalists and sources will know where they stand. Journalists will have no excuse to promise confidentiality they cannot legally deliver, and sources will have a better sense of whether their effort to inform the public will or will not land them in the drink. And if a journalist complains that “the federal law doesn’t go far enough,” then the government will have an even more just reason to command “speak now, or we throw away the key.”