The Privilege to Stay Silent

Friday, June 06, 2014


New York Times reporter James Risen is facing potential jail time for refusing orders from the government to divulge a confidential source, and the Supreme Court won’t intervene on his behalf. Bob talks with University of Chicago law professor Geoffrey Stone about what the situation means for the Obama administration and the press.


Geoffrey Stone

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Bob Garfield

Comments [3]


It's stated quite clearly in the Law of the Land:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Professor Stone's suggestion that there needs be a definition of "journalist" is outside of the meaning and intent of the First Amendment. A professor of journalism should know this like he knows his own face in the mirror.

Everyone who publishes and is read by the public, be it one reader or one billion readers, is a journalist of one sort or another.

Jun. 09 2014 10:38 PM

On second listen, I note Professor Stone:

“My own view is that the idea of this ["journalist's"] privilege is to be able to have the source know that there are people to whom she can go who can protect her confidentiality. It doesn’t require that everybody who would like to be called a journalist has that privilege, what matters is that if you want to get information out to the public and that’s the reason for allowing the privilege, that there are people who are reasonably well identified who individuals who want to communicate to the public are able to go to. Most states have managed this problem without too much difficulty. They’ve defined who’s covered by it in all different ways from one state to the other and that’s not really been a terrible problem. There are going to be winners and losers out there but that shouldn’t be the critical issue for the Congress. They should be able to resolve it the way forty-nine states have managed to resolve it. There’s no right or wrong answer ... just have to draw a line and it’s going to be somewhat arbitrary.”

I’m surely no expert upon the subject of the shield laws of the fifty states and Professor Stone’s c.v. is formidable.

Yet, his assertion above, “There’s no right or wrong answer [as to how the privilege to publish without threat of subsequent prosecution or other legal inducement to reveal information about a source should be conferred] ... just have to draw a line and it’s going to be somewhat arbitrary,” is breathtaking.

Does Professor Stone actually believe that insulation from charge, indictment, trial, conviction and sentence in federal court should be, or indeed could ever properly be, in the United States, “somewhat arbitrary”?

Professor Stone urges that those “who want to communicate to the public” be made able to “reasonably well [identify]” some August Member of an Anointed Priesthood of Pooh-Bahs assigned some kind of mystical Shroud of Pulitzer (a relic of the Most Holy District of the Eastern Seaboard, no doubt) with which to cloak themselves, so that they may communicate their information in a Sacrament of Disclosure.

I say, if she wishes not to publish herself, a Source is wise to choose as go-between any other person she reasonably believes will keep her secret whether such go-between is accused, tried, convicted or punished. Either choose thusly, speak yourself or remain silent.

Happily, the United States Supreme Court has made it clear that it is loathe to Create such a Priesthood, as Professor Stone blithely recommends.

At the first prosecution of a recalcitrant blabbermouth NOT bearing the proposed, protective Mark of Joseph P., the Court will face a hundred million or so angry, modern self-publishers. One can only imagine their thoughts and the thoughts of legislators foolish enough to enact such a PERVERSION, as they behold the mountain of feathers and capacious pots of tar prepared for them.

Jun. 09 2014 04:59 AM

Journalists are fools.

Anyone who publishes has the status of journalist.

States may pass flukey-dukey statutes claiming to distinguish "journalist" from "not-journalist" but NO such distinction would be consistent with the U.S. Constitution. If anyone thinks that state shield law will stand between themselves and a federal prosecutor, they are stupid.

Jun. 08 2014 05:40 PM

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