Glenn Reynolds provides a refreshing blast of common sense in the USA Today blog – Opposing view: No ‘freedom to keep secrets’.
The Constitution merely protects the freedom of speech and publication — not the freedom to keep secrets, which is what journalists are asking for when they seek special privileges of non-disclosure. Increasingly, journalists seem to be focusing on what not to tell us. In doing so, they’re usually pursuing their own interests, not the First Amendment’s or their readers’.
The other problem with journalist “shield” laws is that journalism isn’t a profession; it’s an activity, one now engaged in by many. With the proliferation of blogs, podcasts, YouTube videos and the like, anyone can be a journalist. But if anyone could assert a journalistic privilege not to disclose sources, the work of the courts would be far tougher.
Efforts to limit the privilege to “professional” journalists, on the other hand, quickly transform into a sort of guild or licensing system for the press — ironically, something that the First Amendment clearly prohibits.
The fact is that journalists no more have a right to shield than government employees have a right to leak. And if we grant journalists the shield they demand, we can certainly expect the growth of the entrenched opposition which has hindered and opposed President Bush at every turn with politically motivated leaks. It makes a mockery of our right to select our government.
Government employees are sometimes privy to information to which the rest of us are not entitled. To whom much is given, much is expected – namely, keeping their mouths shut about it. While we can all agree that there are rare occasions where a government employee should break his oath to keep something secret – that should be done by whistleblowing rather than leaking, a thoroughly dishonorable activity. The contrast between whistleblowing and leaking could not be more striking.
Leaking is essentially an espionage activity. Certain members of the CIA and State department have spent the last five years engaging in it, where they ostensibly keep their oaths and do their jobs, yet commit acts of betrayal for what they say is the greater good. We are usually prevented from assessing that, because without knowing their identities, we are prevented from assessing their accuracy and motives. And as the exposure of the perfectly legal terrorist finance tracking program showed, their motives are often political in nature. Whistleblowing, with it’s built-in braking system of public scrutiny, prohibits that kind of politicking. When a whistleblower breaks his oath it is openly and as honorably as possible. We know who he is, we can assess his motives, and we have a good idea whether or not he is telling the truth – or at least if he genuinely has access to the information he claims to have.
Reynolds writes,
Complying with subpoenas might make journalists’ lives more difficult, but lots of industries are burdened by having to comply with the law.
Government employees should top the list of people burdened with having to comply with the law, given that they create, interpret and enforce law on the rest of us. The ability to hide behind journalists serves as leak insurance for these people, and it’s time to cancel that policy.
