No Privilege At Issue In Wolf Matter

I generally favor compelling reporters to disclose sources in response to a subpoena. The Fourth Estate is not a branch of government, and ought not to be granted broad immunity from legal process. It is too easy, otherwise, for folks to manipulate the media with legal impunity.

But the case of Joshua Wolf in San Francisco has me rethinking my position.As Reported By The A.P.

Wolf is a freelance video journalist who was ordered last week by a federal judge to turn over unaired video shots of a protest in which a car was vandalized. Apparently, law enforcement officers want the tape to help nail those responsible for the damage to the cruiser. Wolf refused, and is now behind bars.

This is not the same sort of case as was that of Judith Miller at The New York Times. She defied a judge's order to turn over the identity of a confidential source and did 85 days behind bars. I did not believe then that there should be a journalistic privilege. She was free not to comply with a court order, and she did not comply, garnering her a contempt citation. She demonstrated that the press can be independent, and is independent, when matters of large principle are at stake.

Neither does the Wolf matter rise to the level of the stand-off over whether San Francisco Chronicle reporters will be compelled to release information about Barry Bonds' potential use of steroids.

In both the Bonds case and the Miller case, the government sought compulsion of testimony. The reporters in both instances refused. Contempt is the price they pay for acting as though they are above the law.

Far less is at stake in the Wolf matter. He is not protecting any confidential source here. He filmed material that was in plain view and then was not broadcast due to the vagaries of the editorial process. It is not at all clear to me what is at stake in the Wolf case, other than a desire not to be bothered.

I am no fan of big government, and was, many years ago, a journalist of sorts. (I logged five years as an editorial writer at two newspapers in Connecticut.) But as a lawyer representing ordinary folks in struggles of all sorts, I don't want my adversaries hiding behind a journalistic privilege. It is too easy to speak off the record and do damage nonetheless. Reporters, after all, can be as petty as the rest of us, playing favorites with sources and deciding what is and is not newsworthy as a courtesy to good sources and friends.

A journalistic privilege? No. Let reporters and news organizations do what litigants do in every other case: Weigh the costs and benefits of complying with a court order. No one forces a reporter to spill his guts. But there is no reason to grant them immunity from the law and legal process.

Comments

[Christopher King]

Norm,

I'm a former photojournalist/editor and reporter; you're a former editorial writer. So we both know that the heavy presumption is against compelling reporters to disclose anything -- it's a slippery slope once the gub'ment starts, where does it end? With all due respect, you're buggin' and here's why I say that:

You know darn well America is a virtual police state, especially for the financially disadvantaged or politically unpopular.

So how can you possibly forget that part of the whole reason for the protections afforded to the Fourth Estate deal with the chilling effect that disclosure of sources has on those who may be willing to open up about issues of corruption or public concern?

I made that point both times I blogged about Judith Miller:

http://christopher-king.blogspot.com/2005/10/word-about-jailed-reporter-judith.html

http://christopher-king.blogspot.com/2005/10/back-to-jailed-reporter-judith-miller.html

I wrote of Miller (of whom I am no great fan, BTW) "showing my support for Miller's First Amendment reporter's privilege not to divulge an information source, as protecting America's derivative First Amendment Rights to receive valuable information from the press."

Now you've got promissory estoppel cases against reporters who divulge identities after they've promised not to -- so now the reporter is whipsawed -- and I guess you have no problem with that, either?

Cohen v. Cowles Media Co., 501 U.S. 663 (1991)

===========

It's all about the public's right to know and the haters' attempts to keep the public in the dark. In my Jaffrey case for instance -- with which you are well acquainted -- they didn't want the public to receive derivative information about police abuse; that's why the minute I mentioned a press conference Chief Dunn threatened an Indictment for Attempted Felony Extortion, and the NEXT BUSINESS DAY after I opened my blawg with a negative entry about the NAACP and him, I got indicted.

Anyway, Dunn is toast:

http://christopher-king.blogspot.com/2006/08/kingcast-asks-can-jaffrey-nh-return-to.html

Peace.

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