Privileging a Privilege: Should the Reporter’s Privilege Enjoy the Same Respect as the Attorney-Client Privilege?
INTRODUCTION
In the spring of 2004, federal prosecutors sought the cooperation of Matthew Cooper of Time magazine and Judith Miller of the New York Times in revealing the name of their confidential source who disclosed that Valerie Plame was a Central Intelligence Agency operative.1 Plame’s name was leaked to the press by senior government administration officials, in apparent retaliation for an article Flame’s husband wrote criticizing the administration.2 Cooper and Time eventually cooperated with investigators, but Miller refused to divulge her source and spent eighty-five days in jail for contempt.3
The subpoena of such high-profile journalists comes during a time of low public confidence in the media as well as uncertainty regarding exactly what type of legal protection is afforded to journalists seeking to protect confidential sources.4 This Note advocates the formation of a stronger and broader reaching reporter’s privilege so as to better protect confidential sources. The technicalities of creating the privilege and determining exactly what should lie within the privilege’s scope falls outside the reach of this Note, however. Rather, this Note looks to the well-established and well-maintained attorney-client privilege as a basis for advocating for the strengthening and broadening of the reporter’s privilege-during a time in which it has come under fire-because of the public policy benefits it provides to society.
This Note is divided into three parts. Part I traces the origins and developments of the two privileges, noting the contrast between the attorney-client privilege’s deep roots in notions of a contractual and ethical relationship between attorneys and their clients, and the lack of such a foundation in the reporter’s privilege. Part II summarizes the current state of each privilege, noting that the attorney-client privilege receives broad and uniform treatment in courts, whereas the state of the reporter’s privilege is much more unsettled. Part III points out the problems that arise from application of both privileges and argues that just as the benefits derived from the attorney-client privilege are deemed to outweigh its downsides, so too do the benefits of the reporter’s privilege outweigh the problems that may surface in its application. This section concludes by noting that although the reporter’s privilege may lack strong historical foundations, today it enjoys constitutional, legislative, and judicial support, each of which are strong factors favoring broad recognition.
I. HISTORY AND DEVELOPMENT OF THE PRIVILEGES
A. ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege precludes disclosure to third parties of communications between attorneys and their clients.5 The privilege’s foundation lies in the contractual and ethical relationship between lawyers and their clients. The concept of the privilege, however, first arose in Roman law, which stated that slaves could not reveal their masters’ secrets.6 Perhaps somewhat unceremoniously grouped with slaves and servants, attorneys too, were not permitted to testify against their “masters,” so as to avoid corruption and promote notions of confidence and trust within a master’s family.7 Elizabetheans in fifteenth century England narrowed the scope of the privilege to protect only communications made in the course of an attorney-client relationship; an attorney, it was reasoned, took a “code of honor” and refused to turn “informer” against a client.8
The rationale underlying the privilege changed in eighteenth century England, as notions of oath and honor to the client were supplemented by the goal of promoting an attorney’s fact-finding process.9 American jurisprudence espoused a similar rationale when it adopted the attorney-client privilege, for its purpose was to “promote freedom of consultation of legal advisers by the clients” and “remove the apprehension of compelled disclosure by the legal advisers.”10 Thus, this aspect of the privilege honors the sanctity of the contractual relationship, based on the theory that the quality of attorney representation relies upon open and frank communication with a client. Additionally, the privilege retains the traditional belief that an attorney takes on an ethical obligation-an “oath”-not to violate a client’s trust and confidence.
B. REPORTER’S PRIVILEGE
The reporter’s privilege protects both the source of information and the information that is provided in confidence to reporters. Unlike the attorney-client privilege, however, the reporter’s privilege lacks the ethical and contractual foundations of the attorney-client privilege. Journalists have sought to protect confidential sources since at least 1848, when a reporter refused to reveal the identity of a source who gave him a draft of a secret treaty.11 Various motivations spurred these early claims for recognizing a reporter’s privilege. First, journalists hoped to elevate the status of their profession. As Stephen Bates argues, the issue of reporter’s privilege first arose during the “dawn of the nation’s age of professionalism,” and journalists who sought a privilege were “equating their work, and its social value” to that of more established professions with certain protections, such as attorneys.12 second, and more persuasively, journalists argued that protecting a promise of confidentiality to a source ensured a greater flow of information to the press; no protection for confidential sources, they reasoned, would result in a chilling effect, causing sources to be afraid to speak with reporters.13 Third, some reporters opted for a more ethical route, claiming that the “norms of their profession” and “personal codes of honor” mandated that they not reveal confidential sources.14 Although early court decisions generally did not recognize a reporter’s privilege, state legislatures began enacting statutory shield laws granting reporters protection of confidential sources as early as 1896.15