You Can Blog, but You Can't Hide

NY Times is a registration site so a lot of people who don't want to mess with registering will never see this piece by Eugene Volokh, so I am blogging it here because it is important. Pretty long for a blog post, but it's worth the space and time to read. Permalink to NY Times story.

Say that an I.R.S. agent leaks a politician's income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens' privacy and ensure a fair and efficient tax system.

To punish the agent, prosecutors may need to get the leaker's name from the reporter; but if the reporter refuses to testify because of a "journalist's privilege" to protect confidential sources, the agent may never be caught. Such a pattern is evident in the Valerie Plame matter, where an independent prosecutor is trying to learn who leaked the name of Ms. Plame, a C.I.A. operative, to the press. Uncooperative journalists, including those at The Times, may face jail.

The fate of the reporters involved in the Plame affair - and that of the reporter in Providence, R.I., who was convicted of criminal contempt last month for refusing to disclose who, in violation of a court order, gave him a tape of a city official accepting a bribe - will of course turn on questions particular to their cases. But the solution to the larger problem turns on other questions: Should there be a journalist's privilege? What should its scope be? And who exactly qualifies as a journalist?

Thirty-two years ago, the Supreme Court held that the First Amendment does not create a journalist's privilege: like anyone else, journalists must testify when ordered to do so. But Justice Lewis Powell, in a cryptic three-paragraph concurrence, wrote that there should be a modest privilege protecting journalists from unnecessary harassment by law enforcement. In such cases, he wrote, journalists should be allowed to claim the privilege, and courts should try to strike "a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."

Lower courts are now split on whether the privilege exists. Legislatures likewise disagree; about two-thirds of the states have recognized a journalist's privilege of varying strengths, but the remaining states and the federal government have not. Senator Christopher Dodd has introduced a bill that would establish the privilege in federal court.

So the situation is a mess - and it's getting messier. Because of the Internet, anyone can be a journalist. Some so-called Weblogs - Internet-based opinion columns published by ordinary people - have hundreds of thousands of readers. I run a blog with more than 10,000 daily readers. We often publish news tips from friends or readers, some of which come with a condition of confidentiality.

The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are.

Yet when everyone is a journalist, a broad journalist's privilege becomes especially costly. The I.R.S. agent, for example, no longer needs to risk approaching many mainstream journalists, some of whom may turn him in. He can just ask a friend who has a blog and a political ax to grind. The friend can then post the leaked information and claim the journalist's privilege to prevent the agent from being identified. If the privilege is upheld, the friend and the agent will be safe - but our privacy will be lost.

What's the answer? On the one hand, tips from confidential sources often help journalists (print or electronic) uncover crime and misconduct. If journalists had to reveal such sources, many of these sources would stop talking. On the other hand, some tips are rightly made illegal.

The best solution may be to borrow a principle from other privileges, like those for confidential communications to lawyers, psychotherapists and spouses. The law has generally recognized that protecting the confidentiality of such communications is more important than forcing a person's testimony.

But it has also limited the privilege. Communications that facilitate crime or fraud, for example, are not protected. I may confess my crimes to a lawyer, but if I try to hire him to help me commit my crime, he may be obligated to testify against me.

Maybe a journalist's privilege should likewise be limited. Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act - for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published - then the journalist may be ordered to testify.

Such a rule may well deter some sources from coming forward. But they will be the very sources that society should want to deter, to protect privacy and safety. In any event, the rules should be the same for old media and new, professional and amateur. Any journalist's privilege should extend to every journalist.

Eugene Volokh is THE Volokh of Volokh Conspiracy. Link