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yesh omrim

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Is there a right to speak on double super-secret background?

28 July 2005

Last week, the Senate Judiciary Committee held hearings on whether or not to pass a Federal law giving journalists the right to keep their sources confidential. The people who spoke in favor of this law were right to say that freedom of the press is one of the fundamental principles of our democracy, and laws that promote this freedom are Good Things. However, a system of checks and balances is another fundamental principle of our democracy, and judging from the remarks made at the hearing, the sponsors of the Federal shield bill are not giving that principle its due.

Consider the privileges granted to a lawyer. The Sixth Amendment grants a criminal defendant the right “to have the assistance of counsel for his defense”; the ability to speak with a lawyer in confidence is obviously an important aspect of this right. But you can’t just put “lawyer” on your business card and enjoy all the legal immunities of an attorney. The license to practice law is granted by the state, and someone who violates the professional standards of the bar can lose that license. There is no comparable licensing scheme for journalists.

Furthermore, not every conversation between a lawyer and client is privileged. If I tell my attorney that I cheated on my taxes, she can’t be compelled to reveal what I said to a court. But if I ask her to help me cheat on my taxes, and she complies, then our conversation is unprivileged. Witnesses at last week’s hearing expressed sympathy and support for Judith Miller, who chose to go to prison rather than snitch on her source. But if her source was sharing classified information with her, then Miller was abetting a crime, like a lawyer advising a client how to cheat the IRS.

Why are members of the Senate Judiciary Committee so eager to give reporters a greater license to secrecy than their fellow lawyers have? Inquiring minds want to know. If some mole on the Senate staff has access to confidential documents that will answer my question…you know how to find me.