From the looks of it, this seems to be an outrageous violation of press freedom, and needs to be vigorously resisted. But these matters are not always so clear-cut.
I’m reminded of a case a few years back in my former home town of Berkeley, California. A suspect was arrested and charged with indecently exposing himself in a playground full of children. The local online newsroom, Berkeleyside (which, by the way, should serve as a model for responsible local reporting in the Internet age), ran a story including an interview with a mother who witnessed the incident.
When the case came to trial, the public defender representing the defendant obtained a subpoena for the reporter’s contemporaneous notes on the interview. The idea was to compare the mother’s testimony on the stand with what she had told the reporter at the time, looking for possible inconsistencies with which to impeach her credibility as a witness.
Predictably, the Berkeleyside readers, good Berkeley liberals all, rose to the reporter’s defense over the intrusion on press freedom and the confidentiality of her sources. But more than one constitutional principle was at stake. The Sixth Amendment guarantees to anyone accused of a crime the right to “compulsory process for obtaining witnesses in his favor.” The public defender seeking the subpoena was simply acting properly in the defense of his client.
As in all tough ethical dilemmas, it wasn’t a case of right versus wrong, but right versus right. That’s why the law applies a “balancing test.” As it turned out, the witness said nothing on the stand inconsistent with her earlier interview with the reporter, so the reporter was never called as a witness and the whole incident became moot. But if she had been called, it would have been up to the judge to weigh the reporter’s rights under the First Amendment against the defendant’s under the Sixth. My hunch is that she would have sided with the defendant, but we’ll never know.
The point is that both the reporter and the defendant had legitimate but countervailing constitutional claims. The judge would have been called upon to rule which claim had priority. That’s what we have judges for.
