Journalists, sources, bloggers, privilege

Judith Miller, via her site

I believe in equality for everyone,
except reporters and photographers.

Mahatma Ghandi
[source]

With pending decisions relating to the protection of journalists’ sources in the Supreme Courts in Ireland and Canada, to say nothing of a new movie inspired by the travails of Judith Miller (pictured above left), a student note in the current Columbia Law Review (December 2008, Vol 108, No 8,) is very timely (notwithstanding Ghandi’s quip, above). Here’s the abstract:

David Abramowicz “Calculating the Public Interest in Protecting Journalists’ Confidential Sources”

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source’s information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist’s use of information from a confidential source adhered to the guidelines. This approach would align the journalist’s privilege with the public interest without requiring a subjective assessment of information’s news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a “journalist” entitled to invoke the privilege.

On the general issue of newsgatherers’ public interest responsibilities, see also Janice Brabyn “Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions” (2006) 69 Modern Law Review 895 (SSRN). And on that last question of who, exactly, is a journalist, there is a growing literature on the extent to which bloggers (self-describing as “citizen journalists” in this context) can properly be described as journalists (Concurring Opinions | EFF | Findlaw); see, eg, Anne M. Macrander “Bloggers as Newsmen: Expanding the Testimonial Privilege” (2008) 88 Boston University Law Review 1075 (BULR (pdf) | SSRN).

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