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October 17, 2005

Shield laws

Scott Lemieux makes a key point about shield laws:
Any good shield law will presumably involve a balance between the reporter's privelege and the state's interest in the testimony. So it's not just that a blog that exists to send coded messages about breaking the legs of the store owner who resisted a shakedown to hired goons wouldn't qualify as "journalism." It's also that the state's interest in preventing assault and battery is extremely high, and would obviously trump privileges created by a shield law. As I've mentioned before, this also applies to the case of Judith Miller. Even if federal law were to grant journalists privilege against testifying--which I think would be desirable--and we assume for the sake of argument that her conversations with Scooter Libby constitute journalism, privilege would pretty clearly not hold up in this case. The state has a very strong interest in not having its covert agents burned, and the public interest in this case (Miller didn't even write a story based on what she learned, and her source was not providing useful information but was using her to pursue the interests of the administration) was negligible. So unless the privilege created by the shield law was absolute, which is obviously a terrible (and unworkable) idea, Miller would almost certainly be compelled to testify even if a shield law were in place.
One of the frustrating things about the current debate is that both sides tend to argue as if an absolute shield were an option.

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