Wednesday, June 16, 2004

Above and beyond

When it comes to the free speech rights of the average person, I fall only a little bit short of Nat Hentoff as a First Amendment absolutist -- Free Speech must be FREE.

But the Freedom of the Press is different. From the Founders' conception it existed to prevent pre-publication censorship. Current Free Press advocates have successfully expanded the Free Press Clause of the First Amendment to include reporter shield laws exempting reporters from disclosing their confidential sources. Now the press itself wants to fight against confirming its own work. If the press will not stand by its own articles under oath, in court, why should anyone believe what it prints? If the press will not work within the confines of the US legal system, is there a credible argument that it is not merely a special entity but also an active anti-governmental institution?

These questions arise from this situation and analysis from the Volokh Conspiracy (scroll down on June 15):

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:

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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. . . .

[Volokh's comment]: 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.

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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.

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