Thursday, January 13, 2011

Legal privilege for journalists, coming to a Commonwealth near you?

Most people have heard of attorney-client privilege or doctor-patient privilege, maybe even priest-penitent privilege.  If Del. Barbara Comstock (R - McLean) has her way, Virginia may be about to create a journalist-informant privilege under Virginia law. 

As of January 13, 2011 there is nothing in the Virginia code or common law that appears to protect a journalist from having to reveal sources if compelled to do so by court order, such as a subpoena or search warrant.  If HB2199 goes into effect a privilege will be created where one previously did not exist. 

Looking over the provisions, the privilege that would apply does have exceptions in extreme cases dealing with serious crime in which there is no other source of the information.  At the same time essentially all communications between sources and journalists will be afforded broad protections even though there is no existing or previous contractual or fiduciary relationship with the source such as in an attorney-client context.

Further, the way the statute is drafted there is a gaping loophole.
The statute only applies in proceedings pending in the courts of the Commonwealth of Virginia.  The statute could have been written in such a way as to wholly create a new category of privilege.  This matters for cases pending in Federal Court.  Under this statute, if a matter is pending in Federal Court, and the cause of action arises from state law, state law rules of privilege will apply pursuant to Federal Rule of Evidence 501.  HB2199 only applies in the process of state level court proceedings, and does not create an otherwise independent journalistic privilege, Therefore if there were a state cause of action brought in federal court (which is allowed under certain circumstances) no privilege would apply.

The nefarious element of this statute is the unusual and clear underlying purpose of the statute.  The statute prohibits a court from forcing a journalist to reveal sources.  The journalist is not prohibited from voluntarily revealing sources and their information.  Unlike all other forms of privilege, instead of the privilege being a right applying to the person seeking assistance form a professional, this privilege provides an additional right to the professional without conferring a guaranteed right to the source of information.  This bill is meant to protect journalists, not sources.

There are other reasons, such as a dangerously vague, and perhaps broad definition of journalist that should give one pause.  Nonetheless, for the reasons in the previous two paragraphs I feel the bill is procedurally defective.  I support a reasonable privilege for journalistic communications that protects the source, but not such a broad, and technically flawed privilege as is created in HB2199.

Prediction: I do not know who has been pushing for this type of protection form behind the scenes.  I doubt they have the strength to get it out of committee in its current format.

No comments:

Post a Comment