Monday, December 13, 2004
Should we license journalists?
Of course not. But that is at least one implication of William Safire's argument this morning in favor of a federal shield law to protect journalists from prosecution for publishing information that it is unlawful to reveal:
My question for Mr. Safire: who is a "journalist" deserving of protection under his proposed shield law? All of the other privileges that Safire cites turn on a relationship defined under law (e.g., marriage) or is a benefit of a professional license. Does Safire think we should register and license "journalists" so that we may know to whom this privilege should extend? Or does he believe that we should extend this privilege to everybody who might publish it? That is what the blogosphere would want, no doubt, but does that not then make a joke of any law that prohibits government employees from leaking information? There are five million English-language bloggers tracked by Technorati, up from less than two million at the beginning of the year. How can we possibly run a government, or for that matter an honest criminal investigation, without laws that make certain disclosures unlawful? Safire gives us no answer, other than that we return to responsibility:
Or has the good sense been swept away by MSM journalists who will publish anything, no matter how much damage it might do? It took a newspaper to publish Valerie Plame's name and expose her as a CIA operative. Should not Robert Novak's editors bear the burden of that decision?
This is a serious problem, because we do need people -- MSM journalists, bloggers, and plucky whistleblowers -- to ferret out malfeasance in government. And Safire is correct that publicity-seeking prosecutors have recalculated the balance between the progression of their cases and the public interest in an uninhibited press. They know that picking on the press is popular, and they know that it is a certain way to get a lot of press coverage. The goal should be to reduce the incentives of prosecutors to pursue cases for which the publicity value far exceeds the criminal justice considerations.
I have an idea along those lines: We should pass a law that says that anybody who has served as a prosecutor is barred from seeking elective office for five years after leaving the prosecutor's office, even if that office itself is elective. Double the pay of these lawyers so that the job is attractive in and of itself, rather than as a stepping-stone to higher office, and then hire only serious people who care about criminal justice more than getting their name in the paper.
Counters the court cohort of coercion: isn't every citizen obliged to give sworn testimony to help the government enforce the law?
The answer is no. Government may not compel a man to testify against his wife, nor doctor against patient, nor priest against penitent, nor lawyer against client. The law has extended this "privilege" to psychologists and social workers, on the theory that society is ill served by erosion of trust within relationships dependent on such trust. Certainly the public interest in the robust and uninhibited flow of information should continue to protect confidential relations between source and journalist (as more than 30 states now do through "shield" laws).
My question for Mr. Safire: who is a "journalist" deserving of protection under his proposed shield law? All of the other privileges that Safire cites turn on a relationship defined under law (e.g., marriage) or is a benefit of a professional license. Does Safire think we should register and license "journalists" so that we may know to whom this privilege should extend? Or does he believe that we should extend this privilege to everybody who might publish it? That is what the blogosphere would want, no doubt, but does that not then make a joke of any law that prohibits government employees from leaking information? There are five million English-language bloggers tracked by Technorati, up from less than two million at the beginning of the year. How can we possibly run a government, or for that matter an honest criminal investigation, without laws that make certain disclosures unlawful? Safire gives us no answer, other than that we return to responsibility:
Here's the rub: no privilege is absolute. Constitutional rights sometimes conflict. Extreme example: Everybody - spouses, doctors, lawyers, clergy, journalists, bartenders - must break any confidence to prevent a murder. We are expected to use common sense in balancing our right to remain silent with our obligation to bear witness.
That good sense is being swept away today by leak-happy prosecutors and activist judges.
Or has the good sense been swept away by MSM journalists who will publish anything, no matter how much damage it might do? It took a newspaper to publish Valerie Plame's name and expose her as a CIA operative. Should not Robert Novak's editors bear the burden of that decision?
This is a serious problem, because we do need people -- MSM journalists, bloggers, and plucky whistleblowers -- to ferret out malfeasance in government. And Safire is correct that publicity-seeking prosecutors have recalculated the balance between the progression of their cases and the public interest in an uninhibited press. They know that picking on the press is popular, and they know that it is a certain way to get a lot of press coverage. The goal should be to reduce the incentives of prosecutors to pursue cases for which the publicity value far exceeds the criminal justice considerations.
I have an idea along those lines: We should pass a law that says that anybody who has served as a prosecutor is barred from seeking elective office for five years after leaving the prosecutor's office, even if that office itself is elective. Double the pay of these lawyers so that the job is attractive in and of itself, rather than as a stepping-stone to higher office, and then hire only serious people who care about criminal justice more than getting their name in the paper.
2 Comments:
By 
, at
Mon Dec 13, 03:36:00 PM:
GoodSmith and I had a slight disagreement just last week over which of us first proposed to bar prosecutors from public office (for a thousand reasons in addition to the one you cite) ... and when he and I are both taking credit for a political idea, you know it has WIDE appeal -- MCU
By , at
Mon Dec 13, 06:15:00 PM:
License them? Only once they've had their shots :)
Leash them? I'm all over that baby.
- Cass
