A letter to the weekly Standard

A Source is a Source, of Course, of Course

I like a free press. It is essential. But there are two aspects to the so-called Reporter's Privilege that seem to me very problematic. Confusing a purported right to withhold evidence with a free press is fallacious.

First, in the existing legitimate and well-settled evidentiary privileges--clergy-parishioner, psychotherapist-client, accountant-client, attorney-client, abortion clinic-patient, librarian-patron, etc.--there is a client relationship. The client is the employer of the professional person and the client owns the privilege. The professional advisor has no right and no choice whether or not to waive the privilege without the client's consent. The professional is extended an ethical right to withhold evidence in order to ensure that the professional's loyalty and fidelity to the client is paramount and to solely to serve the client, no other master.

The professional is accredited and answerable to a government (as with a doctor, lawyer, pharmacist, psychologist, accountant, government librarian) or an independent sanctioning association (as with church, congregation, archdiocese) which has the ability to punish, correct, or suspend or revoke a license to kick out the professional from his profession. I don't know that any reporter has been fired or sued or otherwise punished for revealing sources, although it may have happened

Mrs. Gingrich, Newt's mother, has no recourse to the government, a court, or a professional association to punish Connie Chung for violating her confidence, for divulging her "privileged" communication. An attorney could be disbarred. A clergyman could be defrocked. An accountant could lose his license, plus any of them would be subject to civil damages in a lawsuit.

The problem with this model is that the journalists claim the privilege belongs to them and that they alone have the choice to protect it or divulge it without any reference to a client or to the source. The source is not even consulted and is unknown. A privilege (or right) without responsibility (or accountability) is merely a license to frame, defame, and fabricate, isn't it?

Any professional can violate his privilege when called to do so by a higher ethical call, but that person, whether he be an attorney, accountant, intelligence agent, soldier or mafia bag man does so accepting the reasonably foreseeable consequences of his choice. Gordon Liddy, John Mitchell, and Mr. McCord couldn't legally keep a secret, but no one knows who Deep Throat is, 35 years after the event.

Second: What is a "reporter?" Which people in our society are given a choice to withhold evidence under the so -called journalist privilege without being answerable for obstruction of justice? Is Matt Drudge a journalist? Who decides who is a journalist?

Dan Rather discovered that any accredited journalist can be scooped and discredited by someone without a police-issued Press Card or without being employed by a "media organization," whatever that is. Is a blogger a journalist? I'm a blogger. Is a historian a journalist? Is Michael Moore or David McCullough a journalist who possesses a privilege not to divulge sources when ordered by a judge? I expect Mr. McCullough might not like to be lumped in with broadcast reporters but if he can get a privilege out of it to withhold his sources and conceal information from a court of law, or an academic review panel, he might jump at the chance. How do scholars remain answerable and accountable to peer review and academic honesty if they are asserting a reporter's privilege? Who belongs to the privileged class of people called "reporters" and who says so?

Would Mr. Rather be entitled to divulge his source in his own defense if sued for defamation or some sort of fraud under the superscript case? Or would he be barred from presenting that evidence because he or his producer had pledged never to reveal his source to a source who tricked him? Is it real or voluntary?

The special treatment that the press gets with regard to defamation and libel affixes to the target or subject of the defamation. The critical element is whether the target is a "public person" or not, like General Westmoreland, Oliver North or OJ Simpson, not the status of the journalist or publisher of the utterance.

By analogy, the Second Amendment guarantees a "right," but it has been held that that right is subject to regulation through the issuance of licenses, background checks and specific restrictions (no guns in the post office, no guns in the Capitol, no guns in a sporting event, no guns in the high school, what guns are forbidden to all and what ones to some). The press as a class has never made much complaint of these limitations and restrictions. In fact they have on balance advocated them.

These are big problems, I think, and I can see no way to have a genuine privilege without some sort of sanctioning board or government license. How does that align with a Free Press? I don't think it is possible to leave the sole discretion of whether or not to reveal a source without the clout of government sanction to the reporter himself, or herself, if you insist. Matt Drudge, Jason Blair, Michael Moore, Oliver Stone, Ms. Miller and Mr. Cooper (yes, Robert Novak, too) can say whatever they want, but they still need to be able to back it up if there is a challenge. Everyone else does.