Journalist Privilege and Forced Testimony

Slate: Vote for Woodward!

There's an obvious-but-wacky answer to the dilemma of the "journalists' privilege" against testifying in court. What's the dilemma? a) It's helpful for a free society if there's someone people can leak to without fear that the information will come out in court. But b) why give that immunity from testimony to those people who happen to be hired by corporate media (and then claim, condescendingly, to be acting on behalf of the rest of us)? Judith Miller doesn't deserve greater First Amendment rights than a blogger like Tom Maguire just because she got hired by the Sulzbergers. But if you gave everyone who could start a blog--that is to say, everyone--immunity from having to testify then virtually nobody would have to testify.

And that's a bad thing?

What is his "semi-facetious proposal" to remedy this problem?

The second solution is to do what we normally do in a democracy when we have to ration special powers to a few citizens--elect them. If we need ten or twenty reporters in Washington who get special immunity from testifying in order to facilitate the "public's right to know," then let the public choose them by secret ballot. Suppose we gave these Reporters General 5-year renewable terms. They'd have to produce in order to get reelected, and if they got big stories wrong (as Miller did) their chances would dim.

I don't mean this proposal facetiously--only semi-facetiously. If we want a broad journalists' privilege, I don't see another way to get it without arbitrarily granting some citizens more rights than others.

There's the answer to the "dilemma," Mr. Kaus: there is no dilemma because it is wrong to force people to testify.

Murray Rothbard, The Ethics of Liberty, Chapter 12 - Self-Defense:

It should be clear that no man, in an attempt to exercise his right of self-defense, may coerce anyone else into defending him. For that would mean that the defender himself would be a criminal invader of the rights of others. Thus, if A is aggressing against B, B may not use force to compel C to join in defending him, for then B would be just as much a criminal aggressor against C. This immediately rules out conscription for defense, for conscription enslaves a man and forces him to fight on someone else’s behalf. It also rules out such a deeply-embedded part of our legal system as compulsory witnesses. No man should have the right to force anyone else to speak on any subject. The familiar prohibition against coerced self-incrimination is all very well, but it should be extended to preserving the right not to incriminate anyone else, or indeed to say nothing at all. The freedom to speak is meaningless without the corollary freedom to keep silent.

If no force may be used against a noncriminal, then the current system of compulsory jury duty must also be abolished. Just as conscription is a form of slavery, so too is compulsory jury duty. Precisely because being a juror is so important a service, the service must not be filled by resentful serfs. And how can any society call itself "libertarian" that rests on a foundation of jury slavery? In the current system, the courts enslave jurors because they pay a daily wage so far below the market price that the inevitable shortage of jury labor has to be supplied by coercion. The problem is very much the same as the military draft, where the army pays far below the market wage for privates, cannot obtain the number of men they want at that wage, and then turns to conscription to supply the gap. Let the courts pay the market wage for jurors, and sufficient supply will be forthcoming.

If there can be no compulsion against jurors or witnesses, then a libertarian legal order will have to eliminate the entire concept of the subpoena power. Witnesses, of course, may be requested to appear.

Screw the entire concept of 1st Amendment journalist privilege. No one should be forced to talk about what they know. I consider it a form of torture. Jailing someone for not talking to a jury is an illegitimate application of force against someone who has not committed a crime.

Judith Miller of the New York Times and Matthew Cooper of Time should be set free and no one should be incarcerated for refusing to talk to a court or prosecutor.

Posted by Drizzten at July 06, 2005 03:19 PM