Quote:
Originally posted by Mmmm, Burger (C.J.)
If a client choose to waive ACP, is the lawyer's disclosure of communications coerced? No--the right is the source's to be free from disclosure of identity. Novak (or the press generally) are simply the third party best positioned to assert that right. If the source can't claim it, why should Novak be able to? And what interest does it preserve if he maintains the confidentiality--of sources who leak information contrary to the wishes of the admin? That's not much of an interest--a bit like protecting the right of the press to publish illegally obtained private materials.
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Yeah, except we allow state shield laws to apply to "unprivileged" matters, like videotape of a junkie shooting up in a flophouse in the presence of others. These laws don't really create a privilege relationship between reporter and source anyway. The underlying facts aren't privileged, but we've made a policy decision that we want people to trust the press. So we give the press a special little shield to use to protect their own asses from spending a night in jail every time their confidential source gets into hot water.
I don't know much about the governing law of D.C., but in California it's neither a right nor a privilege, and belongs only to the reporter* --- it's simply an immunity from contempt to refuse to respond to the subpoena. So if you've got videotape of the commission of a crime, and the DA subpoenas it, you can just refuse to produce the unaired material (the aired material, if any, is not subject to the shield law, and must be turned over). But if the reporter is sued for defamation and is asked for his notes or unaired tape, and refuses, there's nothing to stop issue sanctions or a jury instruction ("you may infer that failure to reveal the notes during this trial is an indication the notes contain nothing exculpatory of the defendant, or indicate the disputed quotation never occurred").
The
Branzburg decision, which is the only "privilege" that applies in federal courts (to my knowledge), isn't really a privilege either. It's a balancing test that must be undertaken before the court turns to the reporter and says "cough it up." Just a way of giving
some deference to First Amendment policies, but not much protection for the reporter.
*There are cases under CA's shield law holding reporters liable for breach of contract, where an agreement supported by consideration to keep a source confidential was alleged. The press argued that any K liability would be a 1AD infringement, and lost.
