Freedom of the Press Thread

[musiclawyer]

Learned a lot from Frontline broadcast on Tues. I thought the big corporate media attornmys were good advocates but grossly irresponsible in terms of advancing sound public policy. The show also brought three things to mind about a hypothetical nation-wide press shield law;
1. Libby-Judith Miller

2. the Balco scandal and the SF Chrionicle reporters

3. The blogger guy sitting in jail for refusing to turn over video of protest (in SF I think) to Feds

In Libby-Miller shield law was being used to hide the identity of confidential informant who may have been percipient witness to a crime or possible crime

The Chronicle reporters knew or should hae known that their source was breaking the law (attorney leaking grand jury testimony. Attorney's motive was to unethically "manufacture" prejudice for his client. Leaker's motive is really irrelevant).

Video guy was another percipient witness(perhaps to a crime, perhaps not).

So......If I'm writing a national sheild law, I make sure the press is alowed to protect it's work-product and confidential informants UNLESS disclosure is necessary as a last resort to discover potentially admissible evidence in a criminal prosecution.


Prosecutors could not rely of the press to do their homework before deciding to file a criminal complaint

Whistleblowers would remain anonymous unless they were needed tom advance a live criminal case laready on file. Civil and civil enforcement actions would not count, so whistleblowers would remain anonymous unless they wanted to waive their anonymity by filing a false claim action.

Leakers who are criminals or protecting criminals can't hide behind and manipulate the press.

If you and I had evidence of a crime or possible crime, any attorney in a criminal case in most courts in the land could subpoena us and our relevant possessions . So you and I and the NY times are no different than video guy. But if it's a civil case, and if video guy prove that he makes a living reporting, and his video is the direct result of a confidential source not a party to the litigation, his video should never see the light of day in connection with a civil case.

And BTW all of the above has nothing to do with freedom of the press. The press is free. It's just that freedom is not without responsibility.
I don't think I can simplify much more a hypothetical shield law without screwing with up other public policy issues.

Thoughts, recommendations or caveats? I'm not a media guy, so I probably won't even check on this thread again, but I thought some of you might be interested in this concept that's been bouncing around my head since Tues.