February 16, 2005

Journalists Taken Down a Peg
World Shrugs In Utter Apathy

One of the things that bothers me about journalists is how they go everywhere acting as though simply being a journalist (even say a sportscaster or the local weather girl) gives them some sort of special status as a gatekeeper to the truth. This isn't the part that bothers me so much, since everybody likes to inflate his own importance. What does bother me is the attitude surrounding the idea that journalists don't have to reveal their sources. I'm not even so much bothered by the legal proposition as the entitlement attitude of journalists.

They act as though saving their own asses is some high-minded, principled stance. What's the defense given for this cause? That sources won't come to them without confidentiality. Okay, true, that's very plausible, but really isn't that saying "my job would be harder?" Yes, that's very astute of me to notice. So they're shoveling all the BS about how heroic and honorable this is to stand stoically against the unlearned masses to defend the idealistic and universal principle of... making your job easier?

Honor and principle are most respectable when they go AGAINST your interests, not for them. That's when you deserve praise for real courage. That's not to say going in your own interests cannot be honorable, but it's sure a lot more admirable to stand up for principles when they hurt, and not help.

Really we're just hearing about journalists who are taking proud stands for their own reputations and to some secondary degree for the reputation of journalists in general. What's so great about that? Sure, it's the law and it very well might be a good thing that it is the law (since we the public have an interest in whistle-blowers and truth-reporting). But how exuberantly proud can you be that you did something that's both legal and in your own interest?

The question behind privilehe becomes "who is a journalist?" If etymology serves me right, then I am literally a journalist. After all, a log and a journal are basically synonyms (except by vernacular usage; Captain Kirk kept a log, where Trekkies living at home in their 30s write journals about their feelings). So in that sense, I am an amateur journalist. Is there a threshold for circulation? Well, if I had some dynamite expose, I could e-mail a link of it to InstaPundit, LittleGreenFootballs, Powerline, Kos, anybody I wanted. The joint work of all the blogs would dramatically increase circulation beyond any single blog. So if the privilege exists to protect high-circulation or potentially-high-circulation journalists then it's plausible that every blogger deserves the confidentiality privilege.

Does it matter if it's amateur? Or if the information is published freely? I'm sure the Village Voice, which is free, could argue the privilege on equal footing with subscription papers. I see no reason why paying the journalists or paying to buy the paper or other medium should make the need for confidentiality any less valid. TV news is reimbursed by viewing commercials in the same way many blogs are reimbursed through banner ads. PBS is supported By Viewers Like You and similarly a lot of blogs have contribution links.

This wider argument has been discussed before, especially on the Volokh Conspiracy (which includes possibly the smartest bloggers around). Would it create a shield that could be abused? Could anybody take a few minutes and become a blogger, then assert the privilege? It sure stands to reason. In that case, confidentiality would be widespread and the 'privilege' would instead be the rule more often than the exception to it. Is that so bad? Well, it sure is if you needed to investigate a crime.

It's wonderful how new technology and new institutions make us question old values and expectations. In this manner we can truly determine what is objectively right and what is merely subjectively valued. It's really fun, even if you don't come up with an answer very easily.

Now in my view, it's probably done some good that sources can be kept confidential. I wouldn't know how to prove it, but certainly it seems like whistleblowers and others are more likely to come forward if they can protect their anonymity. I'm not sure if ultimately is does more good or more harm, but I'm not prepared to toss it out too quickly until we can decide its long-term effects (the short-term effects of throwing it out are obvious - investigations and prosecutions would be greatly aided). I'll leave it to learned experts and greater minds than myself to determine how the scales come out in the end. Ultimately it probably will and probably ought to come down; I suppose I'm leaning against it if only because it strikes me as anachronistic and a symptom of an elitist, Progressive-era mindset.

This also reminds me of an under-considered aspect of polygamy, which is in itself an under-considered right/privilege. Consider marital communications privilege - the inadmissibility of spousal relations in legal proceedings; not just confidentiality reserved to the spouse's discretion, but the actual inadmissibility. If a person says something confidential to his or her spouse, it can be privileged and inadmissible without the speaking-spouse's consent. There's also spousal privilege - spouses cannot be forced to testify against each other in court.

If polygamy were accepted and legal, then particularly crafty (and sexually secure) criminal gangs could protect themselves from ratting each other out in this manner. Since there's usually no real differentiation made for the intimacy of a legal marriage, the certificate would be enough. So we could have whole gangs married to each other and thereby creating a legal shield.

The remedy to this would be to refine, reduce or eliminate spousal confidentiality and privilege (though I should mention that privilege works differently by state). I just find it interesting to contemplate. It seems far-fetched that more than a few groups would do this, considering the often-strong taboo on being effeminate as a criminal. Of course, this is ALREADY possible with normal, man-woman marriage, and as far as I've heard heterosexual marriage is rarely used to provide an added shield of confidentiality between co-criminal spouses. The same goes for attorney-client, doctor-patient, and priest-supplicant relationships. I'm sure all of these privileged relationships have been used and abused in the manner I've described.

It's not a likely outcome, so I hope overzealous social conservatives do not use this as an argument against polygamy; it's certainly the exception and not the rule. But a change of this type (polygamy legalization) works the same way blogging changes journalistic assumptions. That's the only reason I bring it up; it forces us to ask why marital privilege exists.

In the end, journalists were better able to maintain their privilege when it was a rare gift given to a relatively isolated, elite few. If only a few people have a privilege the problems with it seem less severe. Ultimately, blogging does not change the good effects or bad effects of the journalistic privilege. All blogging does is lower the threshold for entry into the field of journalism - it's a lot easier with blogging around, since you don't need a job as a reporter and don't need editorial approval. So if the privilege helps informants and whistle-blowers step forward, then blogging can only make that easier. If the privilege is a shield against prosecution then blogging makes that easier. In the process of changing the difficulty of entry into the field of journalism, blogging might also affect the balance between the two (and turn an overall bad into an overall good, or vice versa). I don't know that we can ever really examine this sort of thing, since confidentiality is such a large factor.

One thing is clear to me, however: blogging deserves the same protections as newspapers and television. To quote Eugene Volokh in the NYT: "[T]he rules should be the same for old media and new, professional and amateur. Any journalist's privilege should extend to every journalist."


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