InstaPundit points to a story about journalists’ refusal to testify in the trial of Lynne Stewart, a lawyer who alleged helped her client — a convicted terrorist leader — communicate with his followers:
Prosecutors issued subpoenas to four reporters at Reuters, The New York Times and Newsday, saying they want the reporters to testify that lawyer Lynne Stewart said what they quoted her as saying in their articles.
Newspaper articles on their own are not admissible because they are considered hearsay.
Lawyers for the reporters have argued that making the reporters testify would compromise their neutrality by forcing them to side with prosecutors.
In a Reuters story from earlier this month, journalists raised still more objections:
“We seem to be moving to a potential conflict between First Amendment interests and those of national security,” said prominent press freedom attorney Floyd Abrams.
“This is an area fraught with danger for journalists and their ability to protect confidential information and sources, as well as non-confidential material,” he said.
While all three media stand by the stories, they oppose the subpoenas on principle and because testifying could open the door to far broader cross-examination by the defense. . . .
Reporters say that without their privilege to refuse to disclose even non-confidential information, based on the First Amendment of the U.S. Constitution, they cannot do their job.
“Our sources will dry up if sources . . . think that anything they tell us will be repeated against them in court. Why would you speak to a reporter if those words are going to be read back against you in court?” said George Freeman, in-house counsel for The New York Times.
“We are supposed to be the watchdog of our government, not its lap dog, so we shouldn’t be in bed with it testifying,” Freeman said. . . .
Now I think there are good arguments for a journalists’ privilege, though I’m ultimately somewhat skeptical about it. If journalists can’t credibly promise confidentiality to confidential sources, they may find it much harder to gather important information. And the legal system does recognize some privileges — for instance, lawyers’ privileges, psychotherapists’ privileges, clergy-penitent privileges, and husband-wife privileges — that try to foster certain relationships even at the expense of the search for truth in trials.
But this is a pretty weak case for asserting such a privilege. The government wants to ask the reporters what Lynne Stewart said to them for purposes of publication — it wants to confirm that the quotes that the reporters published are indeed what Stewart said. If you expect your words to be in the New York Times, you likely won’t be terribly surprised or concerned that they may end up being quoted in court as well.
This has little to do with the ability to keep confidential information that really is confidential (such as the identity of a confidential source). If the concern is that the reporters will be asked for truly confidential material, then the solution is to ask the court to bar such questioning, not to refuse to testify altogether, including about the clearly nonconfidential material.
More broadly, the New York Times lawyer’s rhetoric here, about not being the “lap dog” of the government or “in bed with” the government, is just appalling. All of us, as citizens (or even noncitizens), generally have a duty to testify when called on to do so. That duty is part of the legal system’s attempt to learn the truth, and provide justice to the government and to individuals alike.
This duty applies even when it may deter some constitutionally protected speech. If I talk to you about something, or e-mail you something, and that becomes relevant to some civil or criminal case (e.g., because it’s relevant to determining my actions or intentions), you can be compelled to testify about it. This may well deter me from saying certain things to you: A businessperson, for instance, might be reluctant to express potentially racist, religiously hostile, or sexist views to people, for fear that those views may be discovered and used against him in a discrimination case.
Private conversations about politics are just as constitutionally protected as media reporting, and just as valuable; people’s attitudes are often molded as much about what they hear from their friends and acquaintances as by what they hear from strangers in the media. Yet we accept that the duty to testify may well deter such conversations — it’s part of the price we have to pay for getting at the truth in criminal trials.
Nor does a citizen become a “lap-dog” of the government, or get “in bed with” the government, because he does his duty (whether voluntarily or involuntarily), and helps the jury learn the truth about what happened. It seems to me arrogant, contemptuous, and contemptible for media representatives to suggest otherwise — to suggest that there’s something base or some sort of sell-out in a person’s responding to a subpoena.
So it seems to me that we must recognize that the media is asking here for a special privilege, a privilege that most ordinary people — including those engaged in quintessentially First-Amendment-protected activity, such as conveying their own personal political opinions in private — do not possess.
Perhaps there is some reason to provide such a privilege for confidential communications. But the privilege ought not devolve into a general right to refuse to do a citizen’s normal duty, even when the communication about which they’re asked to testify was so nonconfidential that it was ultimately published in a national newspaper. And it certainly shouldn’t be asserted in the high-handed way that some media representatives tend to use.
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