In Chapter 6 of “Freedom for the Thought We Hate” by Anthony Lewis, we gain insight on the issue of “press privilege,” and what exactly that means for reporters at the witness stand. One of the most important issues within this is that of defining what it really means to be part of the press.
But what does it mean to be the press? In an age where anyone can upload a weekly blog about the news (wink wink), there has to be some sort of standard for categorizing members of the press. Justice White defined the press as anywhere between the “lonely pamphleteer … [and] the metropolitan publisher.” But when it comes to an official reporter privilege in a court of law, many states have their own set of qualifications. For example, in West Virginia’s shield laws a protected journalist is defined as anyone employed by a publication, including student reporters. In Ohio, no one who is gathering, writing, photographing, or editing news can be compelled to reveal their sources.
This inability to define a journalist isn’t new, either. In 1972, when the issue of reporters not revealing sources first went to the Supreme Court, Justice White stated that there was no “practical reason to grant a constitutional privilege to the press” because they could not define what a qualifying reporter was. And if they couldn’t define it in 1972, how could we expect to define it now, when there are infinitely more platforms to report on?
But if we aren’t sure who “the press” is exactly, and qualifications for press privilege are often on a case-by-case basis in many states, how do journalists cope with knowing their sources are possibly unprotected?
Apparently, most just act according to the belief that they do have this privilege. Lewis takes a 1981 “Washington Post” story that won the Pulitzer Prize before it was uncovered that there in fact, was no eight-year-old hooked on heroin in the Washington, DC slums. It’s, quite frankly, insane to think that even with balancing tests and qualifications for protected source privileges, the Post wouldn’t have to disclose the names of those who got an eight-year-old addicted to heroin. But Lewis quotes the Post warned against “using the episode to discredit the various First Amendment protections that were activated … when the conflict sharpened between the paper and the authorities on the question of identification of sources.” Which, in most cases, makes a lot of sense.
Perhaps the Post story is a little too crazy, but whether someone is a technical “member of the press” employed by a publisher or a weekly blogger with a lot of opinions, it is necessary that journalists have protections to not disclose sources out of not only the source’s safety, but their journalistic integrity. Perhaps the real test is in whether you are willing to go to jail in order to protect your reputation as a reporter and newsgatherer, like Marie Torre did in order to protect the CBS executive that said Judy Garland was taking too many diet pills.