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Monday, February 07, 2005

Deep Throat Deathwatch 

Former White House counsel John Dean has been hearing rumors that Deep Throat is about to give up the ghost, which means that Bob Woodward is about to give up Deep Throat. All of which is preface to Dean's discussion of the issues at stake in the Plame case:
Without confidential sources, much of what people need to know in a democracy would never be reported, so unless there is a higher reason, journalists must be able to protect such sources who are willing to impart such information. That said, no news person should agree to provide confidentiality unless it is essential to obtain information that the public should be told and there is no other way to obtain the information. A scoop per se does not justify a pledge of confidentiality . . . .

Finally, if the confidential information relates to criminal activity, the U.S. Supreme Court said in 1972 (in Branzburg vs. Hayes) that should a grand jury investigating the crime need the information, the journalist must turn it over — despite the freedom of the press guaranteed under the 1st Amendment.

No reporter can enter into an agreement that violates that law. Rather, an agreement of confidentiality is subject to it. The so-called news person's privilege, just like the attorney-client privilege or a president's executive privilege, is a qualified privilege. When a judge holds a reporter in contempt for violating the law, that judge is merely upholding the law of the land.

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