case for a testimonial privilege for journalists claims that
public life will be considerably poorer without one. This is
self evident only to those who believe in the inevitable progress
of history according to which Anglo-American life from 1500
to 1950 was obviously poorer than it has been since that time,
which is approximately when journalists began nagging courts
and legislators to elevate them to the privilege bearing few.
It would be nicer if those whose trade is factual to, from time
to time, serve one up in support of their cause.
inherited from English law the assumption that the people’s
courts were entitled to every person’s evidence, upon
proper summons. A few functionaries were given leave to remain
silent in the public interest that citizens seek confidential
counsel in certain limited circumstances: as patients; as penitents;
as potential litigants. [There was also an immunity for spouses,
but that was rather a different thing. ] And so it stayed for
World War II lots of new professions recognized that there was
hay to be made in the status of secrecy: psychologists, chiropractors
and assorted therapists along with engineers and occasionally
architects. The policy basis for decisions made in these cases
has never been very sound and reflects the level of hysteria
one professional group or another is able to bring to bear on
privileges are held by the clients of doctors, lawyers and ministers,
not by the professionals who are merely enjoined to silence
unless they are released by the holder of the privilege. The
journalist reverses this order, as it does the content of the
privilege which usually attaches to the message rather than
the identity of the speaker. And traditional privileges involve
service providers licensed by the state after examinations that
hopefully demonstrate minimal competence.
Privileges are categorical, so they shield slimy scribblers
of gossip as well as Seymour Hirsch. Since Mr. Hirsch is obviously
able to do his job without it, and nothing is gained by protecting
purveyors of muck from laws otherwise applicable, the case for
the privilege as a public necessity remains to be made, Mr.
Sturm’s effort in these pages to the contrary notwithstanding.
which three items are notable: Mr. Sturm neglects to mention
that at least part of the cause for the current malaise in information
credibility and availability has something to do with the shabby
state of unattributed source materials. It is not clear the
quality of public discourse will improve with a lot more of
the issue surfaces now on the occasion of a person who in, speaking
to a journalist, violated a law protecting clandestine agents.
In most places even traditional privileges do not apply where
the transaction in question is itself a law violation. This
is part of the issue in the Rush Limbaugh litigation.
shield laws are popular in countries where the press does not
enjoy constitutional protection so it is all they get. Perhaps
the American press wants to make the trade.