Standing up for a privilege

July 12, 2005|By Clarence Page

WASHINGTON - Attention, fellow journalists: Special prosecutor Patrick Fitzgerald has blown our cover.

In his argument for why New York Times reporter Judith Miller should be jailed until she tells a grand jury who revealed the name of a CIA operative to her, Mr. Fitzgerald stated that "journalists are not entitled to promise complete confidentiality. No one in America is."

He's right. But what's really troubling is how the right of reporters to keep sources confidential has eroded in recent years.

We Americans like to think that conversations between reporters and anonymous whistleblowers are almost as privileged as those between doctors and patients, priests and penitents, patients and psychotherapists and, let us not forget, lawyers and clients.

In fact, Mr. Fitzgerald is correct in saying that none of these professional relationships has "complete" or "absolute" privilege. Lawyers can be forced to divulge their clients' secrets under a court order. All of those confidential relationships have had their privileged conversations whittled away in recent years by statutes, court decisions and aggressive prosecutors.

More doctors and therapists are being forced to open their files in lawsuits and insurance claims. In recent years, more than 20 states have passed laws requiring clergy to report evidence of child abuse, even if the incident was disclosed during a confession or similarly private consultation.

And journalists? In today's politically charged, beat-up-the-press era, respect for our traditional confidentiality privileges hardly stands a chance. Over the last year and a half, nearly two dozen broadcast and print reporters have been subpoenaed or questioned about their confidential sources, according to the Newspaper Association of America. The NAA is among a long list of media organizations supporting a proposed federal "shield law" that would protect journalists from being forced to reveal confidential sources. House and Senate versions of the bill have been stalled in Congress since their introductions in February.

Of course, if less confidentiality helps bring murderers or child abusers to justice, that's hardly a bad thing. However, prosecutors should limit such intrusions on confidentiality to serious felony investigations and only as a last resort weighed carefully against other rights, such as the First Amendment.

Such were the standards set by the Supreme Court's Branzburg v. Hayes decision in 1972, which found that journalists do not have the privilege to avoid testifying before a federal grand jury.

Mr. Fitzgerald was named special prosecutor by the Bush administration to find out whether White House officials revealed CIA agent Valerie Plame's identity to columnist Robert Novak, a disclosure that violates the Intelligence Identities Protection Act of 1982. That law prohibits government officials, but not reporters, from knowingly revealing the identity of undercover intelligence agents. Perhaps, in the end, Mr. Fitzgerald can show us all that the jailing of Ms. Miller was worth it. So far, I doubt it.

In the meantime, it has become chic among some of my colleagues to berate Ms. Miller for refusing to violate her confidence or to quietly work something out with the prosecutor, whatever that means.

I admire her stubbornness. She's not above the law, she's taking her stand and serving her time, becoming an odd sort of martyr to the value of a feisty, independent press.

Mr. Fitzgerald is right in saying that journalists are not entitled to promise complete confidentiality as a matter of law. But some of us are willing to do it anyway, if only as a matter of conscience.

Clarence Page is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

Baltimore Sun Articles
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.