Immunity for reporters fraught with risks
“Absence of Malice” is the great 1981 Paul Newman film about news media recklessness. In it, a reporter runs a story peripherally involving a Catholic Diocese employee who once secretly had an abortion. This fact surfaces in the reporter’s investigation of a wholly unrelated matter, but the reporter runs it anyway, “because it’s news.” The woman in question commits suicide rather than face the shame she perceives and the castigation of her employer. There is the poignant scene of her running about her neighbors’ dewy lawns at dawn, barefooted in her housecoat, as though if she can just gather up all the newspapers, no one will know her secret.
In the subsequent investigation, an attorney general’s office lawyer asks the reporter who her source for the central story is, and she refuses to cite it, pleading constitutional privilege. The newspaper’s reasoning seems to be that while the deceased had no right to her secret, the reporter has an unassailable right to hers.
This reporter privilege issue has run on the surface again for a year now, largely due to the alleged deliberate “outing” of a CIA operative’s identity. Judges have demanded certain reporters reveal their sources, and reporters have refused, claiming privilege. Many news organizations have run editorials beseeching the public to support a recently introduced federal bill that would grant reporters immunity from any requirement to name their sources.
They have a case. Freedom is dependent upon a free press. Secrecy, especially in government, can often be harmful to a free republic. Occasionally the people’s only opportunity to learn a critical truth might be through a source who prefers to remain unnamed for reasons ranging from mere convenience to the threat of death. The media argue that if a potential whistle-blower knows his identity can be subpoenaed, he may not give up the critical information.
So far, so good, but I’m moved to ask some troubling questions before I urge my congressperson to bestow immunity on reporters.
Do we really want to cede to a legion of unelected reporters the legal ability to fabricate a story, and claim it comes from a “reliable source” that they do not have to verify the existence of, even upon the court order of a duly seated judge? Granted, left to their own devices most reporters would not take such advantage of immunity, but what of those inevitable exceptions? What of the damage they could and would do?
Picture a Dan Rather reporting that a candidate in a close election has a disgrace in his background, but when asked to name his source, or, more critically, when asked to prove whether any such source even exists, Rather claims federal immunity from answering.
The news media are already almost sacrosanct in their mission compared with other professions. For decades, reporters have been able to print virtually anything they wish, and as long as no deliberate malice can be proved they cannot be successfully sued or prosecuted, even when what they report is found to be wrong. Proving such malice, even when it exists, is a very long shot in American courts.
Doctors can be compelled by a judge, for cause, to break professional privilege. So can lawyers. To be sure, no reporter should be compelled to reveal a confidential source unless a judge reviews both sides of the matter and decides that the public interest lies in discovering the reporter’s source. But under those circumstances a reporter is entitled to no more immunity from law than the rest of us, and granting any such immunity is fraught with risks of its own.
As the investigating country lawyer in “Absence of Malice” says to the reporter’s attorney when he claims her constitutional privilege from revealing her source: “That’s all horse puckey, counselor, and you know it. The constitution don’t say that. And the privilege don’t exist.”