‘State Department: Prosecuting journalists is not harassment’

April 29, 2014

So reads a headline from the Washington Examiner; the entire story, which is short, reads:

Prosecutions of journalists who refuse to disclose their sources for national security-related stories do not qualify as harassment, according to a State Department spokesperson.

“Individuals are required to testify in court cases all the time,” Jen Psaki said during Monday’s press briefing. “There is an enormous difference between when we’re talking about an individual revealing classified information and what we’re seeing happening around the world.”

The exchange was a follow-up from Friday, when Psaki celebrated World Press Freedom Day. “We will highlight emblematic cases of imperiled reporters and media outlets that have been targeted, oppressed, imprisoned or otherwise harassed because of their professional work,” she said of the coming State Department initiative.

When Psaki was asked about the case of New York Times reporter James Risen “who was ordered in July to testify in the trial of a former Central Intelligence Agency official accused of leaking information to him,” Psaki replied Risen was not charged “for simply exercising [his] ability to tell a story.”

The headline, I take it, suggests that there is something bad here, partly because “prosecuting journalists” generally means singling out journalists for prosecution because of their journalism. But I think it would be more accurate to say, “State Department: Prosecuting journalists for breaking the law that nearly everyone else must follow is not harassment.”

Ms. Psaki is indeed correct: People are commonly required to testify in court. Anglo-American law has long taken the view that, with very few exceptions, the legal system is entitled to compel witnesses to come to court to testify. If a journalist (or pretty much anyone else) sees a murder, he can be required to testify. If a journalist (or pretty much anyone else) has evidence about, say, alleged discrimination by his employer, he can be required to testify. If a journalist (or pretty much anyone else) has evidence about who committed a criminal disclosure of classified information, he would likewise be required just to do what pretty much any citizen is required to do.

Now, to be sure, there are some exceptions, generally called “testimonial privileges.” Lawyers don’t have to testify about what their clients said to them in confidence, except when the statement was in furtherance of a crime or fraud. (Incidentally, I suspect that a client’s leaking classified documents to a lawyer, with the intention that the lawyer publish material contained in them would indeed be crime or fraud.) Psychotherapists have a similar privilege. Clergy have a similar privilege, often without a furtherance-of-crime-or-fraud exception.

One can certainly argue that there are similarly strong reasons for recognizing a privilege for journalist-source communications; indeed, most states have recognized such a privilege by statute.

One can even argue that the First Amendment should be read as securing such a privilege. The Supreme Court basically rejected that view (except as to a very modest privilege to be free from unnecessary or ill-motivated compulsions to testify) in Branzburg v. Hayes (1972); see here for a bit more. Some lower courts have, understandably, rejected a journalist privilege as well. Other lower courts have, despite Branzburg, concluded that the First Amendment does secure such a privilege, though a qualified one rather than an absolute one (indeed, the one urged by the main Branzburg dissent) — the privilege can be overcome by a showing that the journalist’s testimony is really necessary to uncover the truth in the case, and such a showing would likely be present in many leak cases, where the journalist and the defendant are the only two witnesses to the alleged crime. And of course one could argue that Branzburg, a 5-4 decision, was mistaken.

But in any event, I think the State Department is right: Requiring journalists to follow the same rules that nearly all other citizens must follow, rules that don’t prohibit any speech but just require citizens to aid the fact-finding process (though indeed in a way that might sometimes deter some speech among citizens) is not “harassment,” and is not tantamount for prosecuting journalists for the content of what they write.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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