Jornalism Prividedge

The 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.

America 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 centuries.

After 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 legislators.

traditional 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.

Regarding 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 that.

Further, 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.

Finally, 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.