The idea that journalistic sources should be protected by confidentiality is absurd.

An online petition launched two weeks ago to gather support for reporters facing federal pressure to reveal confidential sources has garnered nearly 3,000 electronic signatures from working journalists, according to organizers. They hope to collect 10,000 names and use them in a major newspaper ad campaign. ...

At the top of the petition, organizers placed a statement that says, in part, "We support the reporters in current federal court proceedings who are refusing to testify about their confidential sources and now face stiff fines, even jail. We commend these reporters for standing firm and standing up for First Amendment principles."

At issue is whether or not courts should have the power to force journalists to reveal their "confidential" sources during the course of a criminal investigation. The journalists here are attempting to create a type of legal privilege akin to the well-known attorney-client, doctor-patient, and husband-wife privileges that allow one person to refuse to testify about anything they know or learned as a result of the relationship.

There are all sorts of compelling reasons for these privileges to exist that don't come into play with journalists and their sources, but I'll leave that analysis to people who know more about the history than I do. The critical issue here, however, is that there's no way to determine when a hypothetical "journalistic privilege" should be applied. When it comes to lawyers and client, for instance, the scope of the relationship is clear and well-defined. It begins and ends with a contract and relates to specific isses. But all journalists do is listen to people, so essentially anything anyone ever tells a journalist would be protected by privilege and journalists could never be forced to testify about anything.

And then there's the question of who exactly gets to be a journalist. Can I be a journalist because of this blog? Do I have to work for a major newspaper? Or a TV station? Can I print up pamphlets in my basement and be counted as a journalist? If so, then everyone is a journalist; if not, then who gets to be in charge of deciding eligability, and using what criteria? The idea of a "journalistic privilege" is absurd on its face, because anyone ever called to testify could simply claim to be a journalist and refuse.

The distributors of this petition claim that such privilege falls under the First Amendment, but the text makes no distinction between "journalists" and ordinary people. People who work for news organizations have no more and no less freedom of speech than everyone else does -- we're all protected equally by the First Amendment. No one is entitled to special protection or special freedom because of the identity of their employer.



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