Name That Source: Why are the courts leaning on journalists?
This principle has made it difficult for journalists to persuade courts to recognize a special privilege to protect them from testifying. "When you look at other privileges, like attorney-client or doctor-patient, they arise out of confidential relationships that have a formal quality to them, and there is a powerful and ancient interest in promoting candor," Smolla said. "If you have a journalistic privilege, it might apply to everyone a journalist meets in reporting a story, even if he has no preëxisting relationship with them. The journalist can make the promise of confidentiality on the spot, as needed. The courts are loath to hand that kind of power to journalists to put information off limits."
The converse argument?that journalists should be allowed to promise confidentiality to their sources, and the courts should honor those promises?was made by Justice William O. Douglas, in a dissenting opinion in the Branzburg case. "A reporter is no better than his source of information," Douglas wrote. "Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes settled law, then the reporter?s main function in American society will be to pass on to the public the press releases which the various departments of government issue." A modern version of this argument was elaborated in a series of editorials in the Times defending Judith Miller. "Inside sources trust reporters to protect their identities so they can reveal more than the official line,? one of these editorials stated. ?Without that agreement and that trust between reporter and source, the real news simply dries up, and the whole truth steadily recedes behind a wall of image-mongering, denial and even outright lies."
