Machan's Musings - Journalists And Confidentiality
by Tibor R. Machan
Usually if you aid and abet a criminal, either before or after the fact, you yourself become complicit in the crime. That would apply to you and me—should, say, my best friend tell me he’s robbed a bank and I refused to testify to knowing this, I could be prosecuted.
Not so with journalists, at least not in many cases. The courts have actually been a bit ambivalent, at times holding journalists’ feet to the fire, at times letting them get away with refusing to disclose their sources when these informed them of facts that implied criminal actions by someone. However, journalists themselves have tended, in the main, to insist that this confidentiality be treated as sacrosanct.
Most recently 'The New York Times' chimed in on the matter, in an editorial on Sunday, December 5, 2004, where we hear righteous indignation aplenty about the idea that two reporters, Judith Mill of 'The Times' and 'Time' magazine’s Matthew Cooper, ought to reveal what they know about the criminal leak to columnist Robert Novak that led to the outing of CIA operative Valerie Plame.
Actually this issue of confidentiality between news reporters and their sources is by no means a settled matter in the law. Is it like that between priest and confessor? Spouses? Doctors and patients? Why, in fact, should all those enjoy the privilege that isn’t accorded to me and my friend? Is this not a case of discriminatory treatment where none should occur? Doesn’t, in fact, the letter, let alone the spirit, of the 14th Amendment to the US Constitution prohibit such favoritism toward those privileged parties? Why are they not guilty of obstruction of justice when they knowingly withhold information that could lead to crime detection and prosecution?
I am not going to presume to handle the matter here, although my questions above are rhetorical enough to suggest my inclinations. What I do wish to call attention to, however, is the hypocrisy of those within the journalistic profession—certainly in this case of 'The New York Times’ editors—who have no problem advocating government regulation of nearly every other profession while pretending to stand on principle in their defense of the special privileges of members of their own profession.
Let’s face it: all government regulation is prior restraint, not just what the term is commonly applied to, namely, restraint of speech or publication before any legal proof has been secured showing that conduct has done violence to someone. Only once that is shown may a journalist or author or lecturer or pundit be restrained, not before.
Yet that is not at all how the government treats other professionals. Licensing laws, regulations, inspections and the like are all prior restraint. If I wish to do any major alterations in my home, inside or out, I need to obtain a permit from various city and county bureaucrats, at considerable expense to me in time and money, never mind that no one has demonstrated any wrong-doing on my part.
Such types of prior restraint are legion across this free country and do immeasurable violence to individual liberty, giving bureaucrats power over others they do not deserve. And I haven’t even gotten to eminent domain abuses yet.
Yet where are 'The New York Times' editors protesting the injustice of it all? No place, that’s where. Yet should even the slightest hint of imposing some legal burdens on journalists arise, even when these burdens qualify for the rest of us as fulfilling the obligation to help legal authorities in the pursuit of justice, these editors groan and moan and bellyache thoughtlessly, in knee jerk fashion. They act not unlike any two bit lobbyists would if the special interests of their industry came under scrutiny.
Sadly, what too many people take away from this rank hypocrisy is the pseudo-lesson that we need to regulate journalism and the ministry instead of the lesson that we need to set other professionals free of the government regulators, just as journalists (and ministers, priest, and rabbis) are. Shame on these editors for their blindness to the demands of bona fide justice.
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[Prof. Machan teaches ethics at Chapman University,
Orange, CA. He discusses this topic in greater detail in his book, 'Private Rights and Public Illusions' (The Independent Institute, 1995).]
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