the Irish for rights

Journalists, sources, bloggers, privilege

Judith Miller, via her site

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

Mahatma Ghandi

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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5 Responses to “Journalists, sources, bloggers, privilege”

  1. […] third question relates to Today fm’s sources. Whether journalists have a privilege at Irish law to decline to reveal their sources has not yet been decided at Irish law. It would be ridiculous if […]

  2. […] I’m going to return to the question of journalists’ source privilege. Where it exits, should bloggers also have the benefit of it? Hans Peter Lehofer’s analysis suggests that, at least so far as the ECHR and the ECJ are […]

  3. […] (2005), whilst the US Court of Appeals for the DC Circuit considered both species, but held that Judith Miller could rely on neither to resist a summons to testify before a grand jury. On the other hand, given […]

  4. […] of Robert Novak (pictured left, on the cover of his autobiography), an excellent summary of the Judith Miller affair. From the obituary (with added links): Conservative US columnist revealed identity of CIA […]

  5. […] Judith Miller published a story which, among other things, named Valerie Plame as a CIA spy. In later grand jury proceedings, Miller declined to name her source, despite a decision of the DC Circuit Court of Appeals that she had to do so, and spent 85 days in prison for her troubles. In truth, both Plame and Miller were pawns in a bigger game being played by the White House, but a lawsuit by Plame against members of the Bush administration was dismissed. In the meantime, Plame wrote a memoir about the affair: Fair Game. My Life as a Spy, My Betrayal by the White House (cover left) (Amazon | Simon & Schuster) but she was prevented by the CIA from writing about various aspects of her employment with them. The US Court of Appeals for the Second Circuit held (pdf) yesterday that this restriction did not infringe her First Amendment right to free speech. […]

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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