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Op-Ed Contributor: You Can Blog, but You Can't Hide

December 2, 2004
 By EUGENE VOLOKH





Los Angeles

Say that an I.R.S. agent leaks a politician's income tax
return to a newspaper reporter, an act that is a federal
felony. The newspaper may have a First Amendment right to
publish the information, especially since it bears on a
matter of public interest. The government, meanwhile, is
entitled to punish the agent, to protect citizens' privacy
and ensure a fair and efficient tax system.

To punish the agent, prosecutors may need to get the
leaker's name from the reporter; but if the reporter
refuses to testify because of a "journalist's privilege" to
protect confidential sources, the agent may never be
caught. Such a pattern is evident in the Valerie Plame
matter, where an independent prosecutor is trying to learn
who leaked the name of Ms. Plame, a C.I.A. operative, to
the press. Uncooperative journalists, including those at
The Times, may face jail.

The fate of the reporters involved in the Plame affair -
and that of the reporter in Providence, R.I., who was
convicted of criminal contempt last month for refusing to
disclose who, in violation of a court order, gave him a
tape of a city official accepting a bribe - will of course
turn on questions particular to their cases. But the
solution to the larger problem turns on other questions:
Should there be a journalist's privilege? What should its
scope be? And who exactly qualifies as a journalist?

Thirty-two years ago, the Supreme Court held that the First
Amendment does not create a journalist's privilege: like
anyone else, journalists must testify when ordered to do
so. But Justice Lewis Powell, in a cryptic three-paragraph
concurrence, wrote that there should be a modest privilege
protecting journalists from unnecessary harassment by law
enforcement. In such cases, he wrote, journalists should be
allowed to claim the privilege, and courts should try to
strike "a proper balance between freedom of the press and
the obligation of all citizens to give relevant testimony
with respect to criminal conduct."

Lower courts are now split on whether the privilege exists.
Legislatures likewise disagree; about two-thirds of the
states have recognized a journalist's privilege of varying
strengths, but the remaining states and the federal
government have not. Senator Christopher Dodd has
introduced a bill that would establish the privilege in
federal court.

So the situation is a mess - and it's getting messier.
Because of the Internet, anyone can be a journalist. Some
so-called Weblogs - Internet-based opinion columns
published by ordinary people - have hundreds of thousands
of readers. I run a blog with more than 10,000 daily
readers. We often publish news tips from friends or
readers, some of which come with a condition of
confidentiality.

The First Amendment can't give special rights to the
established news media and not to upstart outlets like
ours. Freedom of the press should apply to people equally,
regardless of who they are, why they write or how popular
they are.

Yet when everyone is a journalist, a broad journalist's
privilege becomes especially costly. The I.R.S. agent, for
example, no longer needs to risk approaching many
mainstream journalists, some of whom may turn him in. He
can just ask a friend who has a blog and a political ax to
grind. The friend can then post the leaked information and
claim the journalist's privilege to prevent the agent from
being identified. If the privilege is upheld, the friend
and the agent will be safe - but our privacy will be lost.

What's the answer? On the one hand, tips from confidential
sources often help journalists (print or electronic)
uncover crime and misconduct. If journalists had to reveal
such sources, many of these sources would stop talking. On
the other hand, some tips are rightly made illegal.

The best solution may be to borrow a principle from other
privileges, like those for confidential communications to
lawyers, psychotherapists and spouses. The law has
generally recognized that protecting the confidentiality of
such communications is more important than forcing a
person's testimony.

But it has also limited the privilege. Communications that
facilitate crime or fraud, for example, are not protected.
I may confess my crimes to a lawyer, but if I try to hire
him to help me commit my crime, he may be obligated to
testify against me.

Maybe a journalist's privilege should likewise be limited.
Lawmakers could pass legislation that protects leakers who
lawfully reveal information, like those who blow the
whistle on governmental or corporate misconduct. But if a
leaker tries to use a journalist as part of an illegal act
- for example, by disclosing a tax return or the name of a
C.I.A. agent so that it can be published - then the
journalist may be ordered to testify.

Such a rule may well deter some sources from coming
forward. But they will be the very sources that society
should want to deter, to protect privacy and safety. In any
event, the rules should be the same for old media and new,
professional and amateur. Any journalist's privilege should
extend to every journalist.

Eugene Volokh, a professor of law at U.C.L.A., writes for
the Volokh Conspiracy blog.

http://www.nytimes.com/2004/12/02/opinion/02volokh.html?ex=1103016805&ei=1&en=bc64c58c55f2cede


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