Press Source Confidentiality?

I have been watching the PBS series on the press with much interest. One of the issues raised is whether reporters should have immunity from naming sources. Much more subtle that I had realized.

In today's New York Times, there is an excellent column on the subject. Read the entire column by clicking on the post title. Here are a few excerpts.

Not All Sources Are Equal

By ANTHONY LEWIS

Published: March 7, 2007, New York Times

Boston

THE conviction yesterday of I. Lewis Libby Jr. on perjury and other charges, after a trial with a parade of press witnesses, leaves a legacy of intensified concern about legal proceedings that force journalists to disclose confidential sources. It is a legitimate and urgent concern. Without the ability to promise confidentiality, the press would have been unable to report notorious abuses of government power from Watergate through the Bush administration’s violations of fundamental rights in the “war on terror.”

But it is much easier to see the danger than to agree on a way to stop it. That is because there are compelling interests on both sides of the problem, as many in the press are loath to admit.

....

THOSE are some of the conflicting interests at stake on the issue of a testimonial privilege for the press. Can Congress figure them all out in a qualified privilege statute specifying in detail when journalists should have a privilege? I doubt it. I think a statute will have to leave the balancing of interests to be done by judges, case by case.

One respected judge, David Tatel of the United States Court of Appeals for the District of Columbia Circuit, has made a wise proposal. It is that the courts use their power to define privileges — a power affirmed by statute — to give a qualified privilege to journalists.

Judge Tatel’s proposal is aimed at the typical leak case: when a federal prosecutor is trying to find the source of a leak and subpoenas journalists. Judge Tatel suggests that a judge in this situation should weigh the public interest in the leaked material against the damage alleged by the government. If the leak were, say, the fact of the government’s lawless wiretapping, it is easy for me to see that the public interest should prevail.

Judges are not always wise. But in our system they are the ones we trust to weigh acutely conflicting interests. In the wake of the Libby case, Congress should pass legislation that makes clear the public interest in journalists’ confidentiality but leaves it to judges to weigh that against other social necessities.