The post below reminded me of something I wrote about this in 2004, about a particular — and particularly unpleasant — argument that some defenders of the journalist’s privilege make. The incident I noted involved subpoenas related to the trial of Lynne Stewart, a lawyer who helped her client — a convicted terrorist leader — communicate with his followers:
“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….
Isn’t this rhetoric about not being the “lap dog” of the government or “in bed with” the government pretty 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.
I should stress that there are sensible arguments for a limited journalist’s privilege, especially a common-law privilege (like the psychotherapist-patient or civil attorney-client privilege) rather than a constitutional one; and the desire to encourage confidential statements to reporters, which can (sometimes) help enlighten the public and (sometimes) even enlighten law enforcement about crimes and scandals that law enforcement might otherwise not have learned about, and might effectively investigate even without subpoeaning the reporter. I speak here only about a particular argument, which strikes me as unsound and as high-handed on the part of the pro-media-rights forces.