A Federal Journalist Shield Law

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2 Responses

  1. “Leaks by government officials are often self-serving, damaging to individuals, and not in the public interest. This was the case, in my opinion, with the Valerie Plame leak.”

    I’ll grant you damaging & non-public interest but what was Richard Armitage’s motive again?

  2. Mark Grannis says:

    Professor Solove:

    Thanks for your attention to this issue, and of course for the links to my own posts about it. I guess I have to plead guilty to the charge that I was “less than clear about a viable solution.” Let me be clearer.

    One viable solution is to do nothing. Importantly, this would not be (as you say) “no federal protection at all.” On the contrary, the federal courts generally refuse to compel reporters or news organizations to produce confidential information unless the information is “necessary” or “critical” to the case (i.e., more than mere Rule 26 relevance), and the party who wants the information has exhausted all reasonable alternatives for getting it. That test has provided excellent protection to the press for many years — 35 years in some circuits. The reason the press wants a federal shield law now isn’t because they currently have no protection; it’s because they’ve abused the protection they have and they want to be let off the hook.

    Of course, advocating this status quo solution implies that I do not think there is any problem that needs to be fixed, which is true. But for anyone who does believe there is a problem — a need to do more to protect whistleblowers, for example — I have also suggested the possibility of a “reporter-whistleblower privilege” rather than just a “reporter’s privilege.” Thus, for example, Congress could grant reporters a privilege to conceal the identity of any source who gave the reporter information about violations of law, gross mismanagement or waste, abuses of authority, or threats to public health or safety — the things covered by the Whistleblower Protection Act of 1989.

    There are tradeoffs associated with these proposals. The first — leaving the issue with the courts — has been criticized as insufficiently clear and predictable. I’m not sure why anyone thinks judicial decisions in this area are less clear and predictable than in other areas, and I confess it seems to me sometimes as if the press thinks the only sufficiently clear and predictable rule would be absolute privilege in all circumstances. The great merit of leaving it with judges is of course that the rule is flexible enough to apply to a wide range of situations, including whistleblower cases on the one hand and vindictive smears on the other. It may be that we need to sacrifice some predictability to have that much flexibility.

    As for the second solution, things like mismanagement, waste, and abuse are often in the eye of the beholder — as indeed is “whistleblowing” — but I think a “reporter-whistleblower privilege” could be made fairly clear and predictable as such things go. But I think this would not be acceptable to media advocates, because it would not cover the vast majority of anonymously sourced news reports. This is the central intellectual dishonesty in the media’s discussion of this issue: They talk about a privilege to protect whistleblowers, but that’s not what they really want or really need. They want a privilege that will protect them even when they’re just passing on unimportant yet extremely harmful gossip. To carry on a multi-year lobbying campaign as they have without acknowledging this strikes me as basically fraudulent.

    If the press wants a privilege as broad as “Free Flow” would give them, let them come clean about it — and then justify why innocent victims should suffer for their reckless servility. We’ll see how many members of Congress want to explain to their constituents why they would vote for anything like that. If the press won’t come clean about what they want, Congress should send them packing.