These are perilous days for journalists’ privilege. So says Columbia Journalism Review. Journalists and media rights advocates are nervous about the Plame case becoming a test case for media privilege, according to a long article by Douglas McCollam in CJR.
“As a general rule courts believe they have the right to “hear every man’s evidence,” and privileges against testifying are not favored in the law. Over time only a few such exemptions have been endorsed, including the attorney-client privilege, the doctor-patient privilege, the priest-penitent privilege, the spousal privilege, and, most recently, the therapist privilege. The Constitution also forbids compelling people to testify against themselves.
[The defendants claim that] “reporter’s privilege should now be added to that list, but fashioning a reporter’s privilege presents special challenges.”
But it is becoming more and more difficult to determine who is a journalist, particularly with bloggers now providing an additional flank.
The article goes on:
“All the other recognized privileges involve inherently private information given to members of accredited professions. Journalism, by comparison, trades in public information and is less a profession than an activity in which anyone can engage. As the courts in both Branzburg and Plame have asked, Who qualifies as a “journalist” for purposes of the privilege?”
If you are interested in the Plame case or the issue of journalist privilege, this is a good read, understanding that it is written with the bias of a media trade publication.