| | Professor Machan, It is my impression, and correct me if I am wrong, that the laws of a free country require that no one be complicit in the commission of a crime, neither before nor after the fact. Aiding and abetting criminals is itself criminal, or so I thought. I think that there are several things that we need to look at in understanding this issue.
1). There is a big difference between "aiding and abetting" where positive actions are taken that facilitate or participate in the crime, versus reporting about it, or a therapist listening to the criminal discuss it, etc. - acts that don't facilitate or participate in the crime.
2.) There is a big difference between an action taken before or during the crime in question, versus an action taken after the crime is over. (If someone provides money to criminal to help them get away, that is a participation in the ongoing crime of avoiding arrest and would be different from a reporter interviewing the crook about past crimes).
3.) To determine if a set of laws is valid, we need to examine their moral roots. And in this case, we will get different results from such an examination depending upon our starting assumptions. Do we adhere strictly to the concept that no act can be made criminal unless that act involves the initiation of force, threat to initiate force, theft or fraud? Or, do we broaden our moral base to include those laws that are required to have a functional legal system? An example might be a law that compels a person to testify if they are a witness to a crime. Another example might be the legal authorization for the raising of a military, or the maintenance of courts - they are related to defending individual rights, but don't themselves arise directly from an act that violates rights. I believe the bright line in this determination is not "will a law make the enforcement of good laws more efficient", but rather, "is a law absolutely necessary to be able to have enforcement of good laws".
4.) The issue of exemptions. Are some circumstances or some occupations such that they should be given exemptions, or should everyone always be treated the same. Am I free to keep my mouth shut about a crime I saw, and does that hold if I am on a witness stand? Again, are we talking about laws that arise directly from describing acts that violate individual rights, or laws that make enforcement of good laws possible and are absolutely necessary, or laws that make for far more efficient law enforcement, or laws that define a 'duty' to the government in its role as delegated defender of our individual rights?
I can speak about the confidentiality laws regarding licensed psychotherapists, having been one. Mental health professionals are permitted, even required to break confidentiality when they learn of a significant threat to an identifiable target. They are also "mandated reporters" when they learn of any sexual child abuse (past or present).
(On the sexual child abuse, I know that there are some abusers who are treatable, but don't get treatment because they know they would be reported. For that practical reason, I don't support the requirement to report past abuse since it results in abuse that would otherwise have been prevented. And I don't think the government has the moral right to force a therapist to become an informant or go to jail.)
Professor Machan discusses the conflict at the heart of journalists confidentiality. If the public is to be informed, they need the media to report, and if the reporters are to get the best information there are sources who would not leak information to them unless they felt that their confidentiality would be respected. But, as he points out, if one of the chief function of government is to lock up rights violators, then is if fair to exempt reporters from doing what everyone else must do in furthering that end? (I know nothing of the law in this area - just saying.) But without a free and effective press the government would not have one of the most effective checks against becoming the main rights violator itself. A free press means being free of government censorship. But the press must also be effective, and there are clearly cases where confidentiality is the key to being effective. The press is private and not an arm of the government. Yet it is mentioned in the constitution, the founders saw it as a key defense of liberty, and it remains so today. It is a part of the overall structure of liberties protections, just as the separation of powers between the judicial, legislative and executive branch is.
I'd say that with reporters, the ability to legally maintain confidentiality - certainly after the fact, and maybe even before the fact - meets two standards: It helps to maintain a vital check against government chicanery, and second, for a reporter to listen to an informant's tale is not an act that violates a right. And if this is after the fact, forcing the reporter to give up his source is not going to prevent a crime that has already been committed.
Professor Machan acknowledges the role of rights in reference to stupid laws, those with no victims, and says, "I would personally give a pass to anyone who would refuse to take part in helping to catch such 'criminals.'" But here, the thrust should be to get rid of stupid laws and not to make more laws that list laws that have exemptions and those that don't. The interesting thing to address here is Professor Machan's implied duty of all citizens to help in capture of criminals who do violate rights. How much, if at all, am I required to do, to risk, to participate in the enforcement of good laws? Clearly, it makes sense to have a law that makes it illegal to obstruct the appropriate actions of law enforcement officials, but that is a prohibition on a positive act, not a requirement that the person do something.
I agree with Mike Erickson's remarks in the post above. To speak or not to speak is a right that government should never violate. It makes it harder for law enforcement and criminal courts to proceed, but we should never sacrifice a right in hopes of gaining more security. And the area to address if more than a few people are not acting in support of the value of good enforcement of good laws is to improve on the grasp of good values - to improve on education, on child-rearing - and to exert peer pressure, and not to try to bring government's gun into play.
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