The press is unlikely to get an absolute shield against having to testify, writes Anthony Lewis
The conviction of I Lewis Libby jnr on perjury and other charges, after a trial with a parade of press witnesses, leaves a legacy of intensified concern about legal proceedings that force journalists to disclose confidential sources. It is a legitimate and urgent concern.
Without the ability to promise confidentiality, the press would have been unable to report notorious abuses of government power from Watergate through the Bush administration's violations of fundamental rights in the "war on terror".
But it is much easier to see the danger than to agree on a way to stop it. That is because there are compelling interests on both sides of the problem, as many in the press are loath to admit.
Consider libel. In its 1964 decision, New York Times v Sullivan, the Supreme Court held that public officials (and, by a later decision, public figures) could not recover damages in a libel suit unless they proved that someone had published a falsehood about them knowingly or recklessly. The court defined recklessly to mean that the author of the falsehood was aware of its probable untruth. That gave the press enormous protection.
Suppose that a federal shield law - the kind of statute that many in the press have been urging Congress to enact - gave journalists an absolute right not to disclose confidential sources. Then a reckless journalist could write that according to a confidential source, a cabinet member had taken a bribe or a Hollywood star had sexually abused a child actor - and the victim of the article would be unable to show that the source was biased or that the reporter had misused the information. The victim would effectively be barred from recovering damages for the grave injury to his or her reputation.
These are not fanciful possibilities. Think about the case of Wen Ho Lee, the US government scientist who was described in various press reports as a spy for China. He was arrested, charged with 59 felony counts and held in solitary confinement for nine months. Eventually the government dropped all the counts but one, a charge that he had mishandled information retroactively classified as "secret" after he was fired, and he pleaded guilty to that. The judge who accepted the plea apologised to Lee and said officials had "embarrassed our entire nation".
Wen Ho Lee sued the government for violation of his privacy in leaks to the press. But when reporters were subpoenaed and asked to name their sources, they understandably resisted.
In that situation, would it have been right for the journalists to have an absolute privilege against having to testify? Then Lee would have had no recourse. I do not think a decent society should give that answer.
The remedy in such a civil case is not to put reporters in jail in order to force them to testify. It is, rather, to make the press pay for the injury it caused. And that is what actually happened in the Lee case. Five news organisations, including the New York Times, agreed to pay Wen Ho Lee $750,000 altogether - which they said was not to compensate him for his injury but to protect their journalists and the right to confidential sources. And the government contributed $895,000 towards Lee's legal fees.
I do not think the press can have both the Sullivan decision and a privilege not to testify in civil cases. Otherwise the decision would be a licence for reckless or even deliberate falsification.
Congress seems unlikely to give the press what it wants, an absolute shield against having to testify in federal cases. To increase the chance of passage, it has been suggested that shield legislation include an exception allowing journalists to be subpoenaed when there is an imminent threat to national security.
That exception seems to me to invite trouble. The most important press disclosures in our time have had to do with what the government claims is national security: the New York Times's disclosure of President Bush's order to wiretap without warrants in violation of law, for example, and the Washington Post's reports about secret Central Intelligence Agency prisons.
The US government is always quick to claim that the national security sky will fall if a story is published.
It did so, notoriously, in the Pentagon Papers case. And judges are too often overawed by such claims. A recent example was the shameful decision by the United States Court of Appeals for the Fourth Circuit that the doctrine of "state secrets" barred a man who showed convincingly that he was kidnapped and abused by the CIA from suing.
There is also the possibility that a criminal defendant, rather than the prosecution, will ask for a journalist's testimony. If that testimony might in fact be helpful, should the law allow the journalist to be silent and the defendant to be convicted? Even if the press had an absolute privilege, I think the courts would free the defendant because he was denied a fair opportunity to make his defence.
Or consider the recent case of two San Francisco Chronicle reporters who quoted documents from a grand jury investigating drug use by major league baseball players.
The reporters refused to disclose their source for the documents, but were saved from jail when federal prosecutors unearthed the source themselves. He was a lawyer who had represented defendants indicted by the grand jury - and who had then demanded that the charges against his clients be dismissed when the story based on his leak appeared. Do we want to protect that kind of trickery? Surely, many journalists would not.
Those are some of the conflicting interests at stake on the issue of a testimonial privilege for the press. Can Congress figure them all out in a qualified privilege statute specifying in detail when journalists should have a privilege? I doubt it. I think a statute will have to leave the balancing of interests to be done by judges, case by case. The respected judge, David Tatel of the United States Court of Appeals for the District of Columbia Circuit, has made a wise proposal. It is that the courts use their power to define privileges - a power affirmed by statute - to give a qualified privilege to journalists.
Judge Tatel's proposal is aimed at the typical leak case: when a federal prosecutor is trying to find the source of a leak and subpoenas journalists. Judge Tatel suggests that a judge in this situation should weigh the public interest in the leaked material against the damage alleged by the government. If the leak were, say, the fact of the government's lawless wiretapping, it is easy for me to see that the public interest should prevail.
Judges are not always wise. But in our system they are the ones we trust to weigh acutely conflicting interests. In the wake of the Libby case, Congress should pass legislation that makes clear the public interest in journalists' confidentiality but leaves it to judges to weigh that against other social necessities.
• Anthony Lewis is a former columnist with the New York Times. (New York Times syndication)