Life of Privilege

Why the law protects some private relationships and not others.

Debate over whether journalists should have the right to keep secret the identity of confidential sources has intensified in the wake of recent court rulings arising from the Valerie Plame episode. Controversy over the so-called “reporter’s privilege” provides a nice window into a bigger basket of conundrums about legal privileges in general—including the question of why we have them at all, who should have them, and how far their protections should extend. Privileges recognized by the law abound: attorney-client, clergy-penitent, psychotherapist-patient, doctor-patient, husband-wife, accountant-client, executive privilege, the state secret privilege, the informant’s privilege, and the privilege against self-incrimination. (Cultural conventions also recognize a bartender-patron privilege, though this is difficult to enforce in a court of law.)

The problem is that privileges are by their nature in tension with other legal values such as transparency and the search for truth. As the Supreme Court observed in the “Watergate Tapes” case, United States v. Nixon, “these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Assessing whether to create a new privilege, then, always involves a delicate balancing of competing goods.

The physics here are not Newtonian. During Watergate, most of the country was clamoring for Richard Nixon to reveal his confidential Oval Office conversations, and indeed the Supreme Court ultimately held that the search for truth in a criminal trial trumped the president’s claim of executive privilege. Yet the entire Watergate investigation was driven in part by the aggressive efforts of investigative journalists such as Bob Woodward and Carl Bernstein of the Washington Post—investigative efforts that were substantially aided by promises of confidentiality extended to sources—most famously “Deep Throat.”

Privileges may derive from legal tradition, what lawyers call “common law,” from statutes, or rules of evidence, or even from the Constitution—as in “taking the Fifth,” the president’s “executive privilege” or the attorney-client privilege—bolstered by the Sixth Amendment’s guarantee of effective assistance of criminal counsel.

Different privileges operate in different ways. The privilege against self-incrimination is unique in that it does not protect communications between two or more persons but resides in an individual who may elect to stand mute and not be forced by the law to offer testimony that might tend to incriminate her. Most privileges, however, protect communications between people in situations where the parties are talking to one another with the understanding and intent that their conversations will be keep secret. These privileges exist to encourage candor or protect privacy, and the whole point is to place certain communications outside the glare of public scrutiny and beyond the intrusive processes of the law. Although in general we seek “every person’s evidence,” in some instances this value is tempered by the reality that in the absence of a privilege, no evidence would exist, because the privileged conversation would not happen.

The curious “informant’s privilege,” for example, empowers a prosecutor to keep secret the identity of a police informant on the theory that nobody is going to rat on Tony Soprano if the prosecution won’t protect the ratter’s name. (More on Tony Soprano follows.) The so-called reporter’s privilege, in contrast, is somewhat unique in that the point of the conversation between the source and the journalist is precisely the opposite: public dissemination of the content of the conversation. The journalist and the source both have agendas, and both include getting the story out. The secret is not what the source said but who the source was.

Privileges have always been controversial. Some question whether they really accomplish much in the first place. Take, for example, the “spousal privileges,” an ancient privilege that prevents courts from forcing one spouse to testify against another in criminal cases. This means you can actually marry into a privilege—a criminal defendant may secure the silence of a witness by marrying her—a reason for wedlock less admirable than most but better than some. There is a broader privilege that prevents courts in criminal or civil cases from forcing disclosure by either spouse of the content of confidential conversations that take place within the marriage. Detractors of the spousal privileges argue that it is silly to maintain that these privileges somehow promote marital candor or harmony. Couples will say what they will say and be at peace or discord for lots of reasons, but it is unlikely that the laws of privilege are high on the list. It is hard to believe that the nature of our national bed talk would be altered by changes in the Federal Rules of Evidence.

Yet is it possible to make the case for favoring the spousal privilege without resorting to arguments about encouraging frank and candid exchanges between marital partners. The spousal privilege resonates with our ancient intuitions and expectations about intimacy, privacy, and loyalty. A society that cherishes the loyalty of spouse to spouse, till death do them part, will not force a spouse to choose between the loyalty and love of partner and obedience to the commands of a judge.

Deciding which relationships deserve the special cloak of privilege is thus an ancient and ongoing struggle. The Supreme Court rejected, for example, the argument of academics that statements made during the tenure and promotion process at universities should be privileged on grounds of academic freedom and the need to encourage candor in peer evaluations. Federal courts do not recognize a doctor-patient privilege, although most state courts do, and a few even extend the privilege to conversations with dentists—at least when matters as sensitive as discussions of HIV are involved. Federal courts do, in contrast, recognize a psychotherapist-patient privilege, though not without controversy. The 1996 Supreme Court case Jaffee v. Redmondreasoned that effective psychotherapy requires an atmosphere of confidence and trust that fosters open disclosure of facts, emotions, memories, and fears. Returning to The Sopranos —you can’t exactly expect Tony to come clean on all his mob hits, betrayals, and schemes if his therapist is a threat to spill to the feds. In his apoplectic dissent in Jaffe, Justice Scalia asked when it was, exactly, that the psychotherapist became so indispensable to our national mental health, and he noted that for most people frank discussions with one’s mother, friends, or bartenders are probably more crucial to emotional and mental equanimity, though no privilege extends to any of them.

Turning to the reporter’s privilege—now under especially intense scrutiny in courts and Congress, in light of a recent decision by the District of Colombia Court of Appeals arising from the Plame affair—the court held that no First Amendment reporter’s privilege exists at all—and that journalists Judith Miller and Matthew Cooper should report directly to jail without passing go. Plame, the wife of Ambassador Joseph Wilson, was outed as a CIA agent by the journalist Robert Novak and others in the aftermath of the firestorm over the claim by President Bush and Vice-President Cheney that Saddam Hussein was working a Niger-to-Iraq uranium connection to build an atom bomb.

The alignment of the parties seeking to have secrets concealed and revealed tends to switch back and forth in these face-offs, in a rich criss-cross of ironies. Richard Nixon wanted to keep his secrets in part for corrupt political motives and in part for reasons deriving authentically from concerns about national security and the importance of candor in Oval Office communications. Promises of secrecy by Woodward and Bernstein helped unlock Nixon’s secrets. In Plame’s case, journalists such as Cooper and Miller claim somebody in the White House leaked Plame’s identity as an agent to Novak and other reporters for the purpose of embarrassing Plame’s husband, who had cast doubt on the administration’s claim that Saddam was building weapons of mass destruction. If it was somebody in the White House who leaked, it is arguably a bit duplicitous for the government to now go hog-wild trying to nail the journalists.

The tangled webs we weave …

Critical to the legal backdrop here is Branzburg v. Hayes, a 1972 Supreme Court decision that seemed to reject, by a 5-4 vote, any special privilege enabling journalists to protect the identity of sources. The court in Branzburg embraced a recurring theme in First Amendment law—that journalists enjoy free-speech rights no greater than those of other speakers. The average citizen has no general confidentiality privilege. As much as I might wish it otherwise, if my bartender gets haled before a grand jury to give evidence against me, she’ll either have to squawk or do time. As the court in Branzburg reasoned, a journalist is also a citizen, and a journalist is not above the law (any more than President Nixon); the law demands every person’s evidence, and journalism had thrived for centuries with no recognition of any special reporter’s privilege.

The remarkable thing about the Branzburg story is that many lower courts interpreted the case as creating a journalist’s privilege, not rejecting it. The hook was a very brief concurring opinion by Justice Lewis Powell, who joined in the five-justice majority opinion rejecting the privilege but also wrote a short passage of his own suggesting that if a journalist believes an investigation is proceeding in bad faith, the journalist can go to a court to quash a subpoena, claiming the prosecutor is on a witch hunt. The courts accepting the privilege have also found persuasive the argument advanced by journalists that protection of confidential sources is critical to the news-gathering process, thus serving the powerful public interest in fostering an independent and aggressive press as a check against government.

A substantial number of states have resolved this debate through legislative measures, known as “shield laws,” that provide for the protection of journalistic sources. Even when a reporter’s privilege is recognized, however, the protection of the identity of the source is typically deemed “qualified,” not “absolute.” This means that the court applies a “balancing test” when the privilege is invoked, weighing the importance of disclosure in the particular case against the interest in protecting the source. When a journalist promises a source confidentiality, therefore, neither the journalist nor the source can ever really be sure the courts will respect the promise. Even when a privilege is recognized, the balancing test introduces uncertainty and unpredictability. When a journalist who extends a promise to a source is later told by a court that the source must be revealed, the journalist is thus placed in an acute moral dilemma: choosing between fidelity to the promise and to the traditions of journalism, which push toward non-disclosure, and the duties of citizenship and respect for the rule of law, which demand revelation.

The journalist who chooses jail in such circumstances is engaged in civil disobedience. To some this is valiant, to others despicable, depending on how they calculate the moral trade-offs. For those (like me) who favor the existence of a qualified reporter’s privilege, there is the additional complication of defining who qualifies as a “journalist,” particularly in the modern culture of Internet blogs. I do believe that the reporter’s privilege assists in news-gathering and that recognition of such a privilege through shield laws or judicial decision serves the high societal purpose of promoting robust discourse. I also believe, however, that this privilege does not deserve a rank as high as many of the others that involve core relationships of trust or privacy. Society has a right to demand that the journalist disclose the source on a case-by-case basis when a court finds—after weighing the arguments favoring disclosure—that the balance tips against the reporter. On whether I’d keep my source secret at all costs, or yield to the order of a judge, for now I invoke the privilege against self-incrimination—at least until I’ve asked my bartender.