Does Journalist's Privilege exist?

["Allen Flanigan." <Allen.Flanigan@USPTO.GOV>]

Forgive the off-the-cuff armchair lawyering, but I think the courts if not
the statutes and laws recognize certain exceptions in the area of the power
to compel testimony having to do with certain special relationships, known
as "privileged communication", to wit:

Doctor/Patient (psychiatrist, for example)
Priest/Confessor
Husband/Wife
Attorney/Client

Do journalists enjoy protection from subpoena applied to information
collected from sources?  Several states have shield laws recognizing such
privileged communication.  As far as the first amendment goes, the
Encyclopedia Brittanica has this to say:

"In domestic affairs, although a number of states have passed shield laws,
which permit journalists to
refuse to disclose confidential information and sources to law-enforcement
bodies, the U.S. Supreme Court has recognized no unrestricted right of press
confidentiality."

Note the use of the term "unrestricted".  I suspect that most shield laws
also do not provide unlimited protection.  It would probably involve a
balancing of the government's compelling interest in obtaining the
information with the compelling interest of maintaining such confidentiality
to facilitate the press' ability to encourage the candid disclosure of
wrongdoing.

Note also that the 5th circuit court specifically referred to the
"journalist's privilege".  Their holding seems to indicate not that while
such a privilege exists,  in performing the above balancing act, they take a
"narrow view" of this privilege in criminal cases.

Link provided to a letter sent to AG Ashcroft asking him to apply DOJ's
subpoena guidelines to Leggett, which (it is asserted) would result in the
withdrawal of the subpoena.  Note the discussion of balancing public
interest in free press vs. law enforcement.


http://www.rcfp.org/news/documents/vlagltr.html


-----Original Message-----
From: bob@WT.NET [mailto:bob@WT.NET]
Sent: Sunday, September 09, 2001 10:03 AM
To: ARN-L@listsrva.CUA.EDU
Subject: Re: Free Vanessa!


----- Original Message -----

> ======================
>    Dear Ms. Leggett:
>
>    As one who's earned his keep writing journalism since 1974, I want to
> thank you
>    for the integrity and honor you bring to our profession.

....  etc

>    The people who arrested you claim you're not a journalist, because
> you've not yet
>    published any journalism and don't yet have a publisher for your
> book. They say
>    you're not protected by laws that shield reporters from judicial
> inquiry.

...... and so on

----------------------

To begin with, who decides who is a journalist?  What if everyone in the
country claimed to be a journalist?  Or does the "journalist" society decide
who to accept?

But this is all completely irrelevant.  It doesn't matter whether she is or
is not a journalist.  The special right she claims does not exist.  We are
all equal.  The question before the courts was not whether a journalist may
refuse to testify.  Rather the question was whether all citizens may refuse
to testify.  Either we all may refuse to testify or we all must testify.
Claiming to be a journalist confers no special privileges.

Read the First Amendment.  Nowhere does it say "freedom of thë press."
Interstingly, when first drafted, the First Amendment protected the press.
But that was not included in the final version.  The First Amendment is
about "Freedom of Speech."  Journalists, the press, or any other citizen is
free to say whatever he or she wants.  Ms. Leggett was never prevented from
publishing or in any other way speaking her mind.  All the courts asked her
to do was to give her evidence.  That is what the courts would have asked of
any other citizen.  A claim to being a journalist does not give her special
rights that the rest of us do not have.  That is equality.

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