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This has got to stop. This administration is walking all over civil liberties and constitutionally protected freedoms. It is turning way too many citizens into

This has got to stop. This administration is walking all over civil liberties and constitutionally protected freedoms. It is turning way too many citizens into enemies of the state. And where not charging them as such, it settles for treating them as such. The branches are not keeping each other in check, either. Instead, they continue to allow themselves to be complicit in violating the consent of the governed, fighting over useless, divisive issues (let's break the country's arm to control everyone's sexuality), and tossing away the constitutional protections we've grown far too accustomed to taking for granted. This is unacceptable.

ars 13y ago
There isn't, and never was, any protection for journalists. Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law. Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.
- kgarten 13y ago
  This depends on how you argue ... some lawyers think this is covered under the freedom of expression. As far as I know there is also some international law covering the protection of sources. Yet, I'm not sure and have no clue about law :)
  - lukifer 13y ago
    I wonder if there is a legal loophole wherein by becoming legal counsel for a source, you are no longer required to divulge anything they tell you due to attorney-client privilege. It would require the right to practice law, but it works on paper (obviously I am not a lawyer).
    - mseebach 13y ago
      Client-attorney privilege primarily protects the communication with the client, not the identity of the client - which is rather counter-productive for a journalist.
      - lukifer 13y ago
        I was thinking in terms of testifying against a client ("They leaked me Document X"), as opposed to revealing their identity.
      - weland 13y ago
        On the other hand, it could provide some degree of plausabile deniability, wouldn't it? "Sure, I talked to X several times. I also talked to Y, Z and <a gazillion of other people who look important, but aren't>. But I can't tell you about what -- you know, client-attorney...".
        btilly 13y ago
        A glance at where people are in an organizational structure will usually make the leaker stick out like a sore thumb.
    - jeffdavis 13y ago
      I don't see how this fits with leaked information. Are you supposed to tell a judge that it's privileged information, but you printed it in your newspaper?
  - sigzero 13y ago
    Those lawyers would be wrong. I can see how they would want that but there is no law to back it. Also, the US isn't governed by international law so they would not be bound by it unless there was a treaty and that treaty didn't contradict anything codified in our Constitution.
  - jasonlotito 13y ago
    You guys are confusing federal and state laws. Many states have shield laws protecting journalists from being held in contempt (there are cases where this is voided, but that's not important). Anyways, while states might have this, this doesn't apply in federal court, as there is no federal law. And journalists know this.
    - tptacek 13y ago
      Those laws are also often qualified, so that the state can't use journalist sources as a first resort, but can fall back on them if other avenues of investigation are exhausted.
      - jasonlotito 13y ago
        Yes, I did mention that. =)
- EGreg 13y ago
  There is also no law that says the government can't seize phone records, email, etc. from 3rd party providers. Let's face it ... any kind of laws like this are just delaying the inevitable, which is that organizations will keep any data they can, whether they are private companies like facebook, or governments. So how about instead we push for greater transparency in everything? If journalists are required to reveal their sources, so should the NSA and CIA. Stop with the "national security" excuse to take away civil liberties. In this day and age, classified intelligence secrets may be more damaging than helpful, the same way that patents are more damaging than helpful in a fast-moving industry like software.
- ams6110 13y ago
  Have journalists even really believed there was? I am not a journalist, but know of the tradition of reporters protecting their sources. IIRC several have famously gone to jail for contempt of court rather than reveal a source. So I'd be surprised if any journalists thought there was a legal basis for refusing to disclose a source if ordered by a court to do so.
- DannyBee 13y ago
  So, there is, but it's not a constitutional privilege, and not federal law. About 40 states have what are called "shield laws", that give various forms of journalism protection. The closest you get federally is Branzburg v. Hayes, where the reporter lost and was forced to testify. In it, the supreme court established a test for when you could force journalists to testify. The DOJ also has self-imposed guidelines on journalist privilege that they try to follow. People also think there is a doctor-patient privilege, but that doesn't exist federally either (yet exists in many states).
rayiner 13y ago
Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?" Indeed, keeping sources secret cuts against the common law evidentiary practice that was typical at the time of the founding. Common law courts have sweeping powers to force people to hand over evidence in their possession using subpoenas, with just a few limitations (5th amendment self-incrimination, etc). The Wikipedia page for an older journalist privilege case gives a good description: http://en.wikipedia.org/wiki/Branzburg_v._Hayes http://en.wikipedia.org/wiki/Branzburg_v._Hayes Floyd Abrams, noted 1st amendment lawyer, had this to say about the case: "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best."
- coldtea 13y ago
  >Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?" Remind me where in his comment he said it was in the Constitution? What he said was: "This administration is walking all over civil liberties and constitutionally protected freedoms". "Civil liberties" and "constitutionally protected freedoms" being two different (if somewhat joined) sets. Second, it can very convincingly be argued that the taking away of such a protection is bad, regarless of if it was in the Constitution or not. (Depending on your stance on the freedom of the press and it's ability to keep those in power in control, of course). The heart of the issue is not if it was in the Constitution. That's a pedantic issue, irrelevant in a democracy. The items in the ammemndements weren't in the Constitution either. And if the right to own slaves had been in the Constitution, few would argue for it remaining there, some centuries years later. The core of the issue is: do people WANT such a protection or not? And do people feel that they explicitly taking of the table is bad or not?

ars 13y ago

There isn't, and never was, any protection for journalists. Journalists wanted to believe there was, and frequently acted as if there was, but there isn't. This is just affirming that well known law. Now you might say it would be a good thing if such a law exists, and journalists certainly think so - and would have an easy time spreading their message. But as is no such law exists.

kgarten 13y ago
This depends on how you argue ... some lawyers think this is covered under the freedom of expression. As far as I know there is also some international law covering the protection of sources. Yet, I'm not sure and have no clue about law :)
- lukifer 13y ago
  I wonder if there is a legal loophole wherein by becoming legal counsel for a source, you are no longer required to divulge anything they tell you due to attorney-client privilege. It would require the right to practice law, but it works on paper (obviously I am not a lawyer).
  - mseebach 13y ago
    Client-attorney privilege primarily protects the communication with the client, not the identity of the client - which is rather counter-productive for a journalist.
    - lukifer 13y ago
      I was thinking in terms of testifying against a client ("They leaked me Document X"), as opposed to revealing their identity.
    - weland 13y ago
      On the other hand, it could provide some degree of plausabile deniability, wouldn't it? "Sure, I talked to X several times. I also talked to Y, Z and <a gazillion of other people who look important, but aren't>. But I can't tell you about what -- you know, client-attorney...".
      - btilly 13y ago
        A glance at where people are in an organizational structure will usually make the leaker stick out like a sore thumb.
  - jeffdavis 13y ago
    I don't see how this fits with leaked information. Are you supposed to tell a judge that it's privileged information, but you printed it in your newspaper?
- sigzero 13y ago
  Those lawyers would be wrong. I can see how they would want that but there is no law to back it. Also, the US isn't governed by international law so they would not be bound by it unless there was a treaty and that treaty didn't contradict anything codified in our Constitution.
- jasonlotito 13y ago
  You guys are confusing federal and state laws. Many states have shield laws protecting journalists from being held in contempt (there are cases where this is voided, but that's not important). Anyways, while states might have this, this doesn't apply in federal court, as there is no federal law. And journalists know this.
  - tptacek 13y ago
    Those laws are also often qualified, so that the state can't use journalist sources as a first resort, but can fall back on them if other avenues of investigation are exhausted.
    - jasonlotito 13y ago
      Yes, I did mention that. =)
EGreg 13y ago
There is also no law that says the government can't seize phone records, email, etc. from 3rd party providers. Let's face it ... any kind of laws like this are just delaying the inevitable, which is that organizations will keep any data they can, whether they are private companies like facebook, or governments. So how about instead we push for greater transparency in everything? If journalists are required to reveal their sources, so should the NSA and CIA. Stop with the "national security" excuse to take away civil liberties. In this day and age, classified intelligence secrets may be more damaging than helpful, the same way that patents are more damaging than helpful in a fast-moving industry like software.
ams6110 13y ago
Have journalists even really believed there was? I am not a journalist, but know of the tradition of reporters protecting their sources. IIRC several have famously gone to jail for contempt of court rather than reveal a source. So I'd be surprised if any journalists thought there was a legal basis for refusing to disclose a source if ordered by a court to do so.
DannyBee 13y ago
So, there is, but it's not a constitutional privilege, and not federal law. About 40 states have what are called "shield laws", that give various forms of journalism protection. The closest you get federally is Branzburg v. Hayes, where the reporter lost and was forced to testify. In it, the supreme court established a test for when you could force journalists to testify. The DOJ also has self-imposed guidelines on journalist privilege that they try to follow. People also think there is a doctor-patient privilege, but that doesn't exist federally either (yet exists in many states).

rayiner 13y ago

Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?" Indeed, keeping sources secret cuts against the common law evidentiary practice that was typical at the time of the founding. Common law courts have sweeping powers to force people to hand over evidence in their possession using subpoenas, with just a few limitations (5th amendment self-incrimination, etc). The Wikipedia page for an older journalist privilege case gives a good description: http://en.wikipedia.org/wiki/Branzburg_v._Hayes http://en.wikipedia.org/wiki/Branzburg_v._Hayes Floyd Abrams, noted 1st amendment lawyer, had this to say about the case: "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best."

coldtea 13y ago
>Remind me where in the Constitution it says that "Congress shall pass no law abridging the freedom of journalists to keep their sources secret?" Remind me where in his comment he said it was in the Constitution? What he said was: "This administration is walking all over civil liberties and constitutionally protected freedoms". "Civil liberties" and "constitutionally protected freedoms" being two different (if somewhat joined) sets. Second, it can very convincingly be argued that the taking away of such a protection is bad, regarless of if it was in the Constitution or not. (Depending on your stance on the freedom of the press and it's ability to keep those in power in control, of course). The heart of the issue is not if it was in the Constitution. That's a pedantic issue, irrelevant in a democracy. The items in the ammemndements weren't in the Constitution either. And if the right to own slaves had been in the Constitution, few would argue for it remaining there, some centuries years later. The core of the issue is: do people WANT such a protection or not? And do people feel that they explicitly taking of the table is bad or not?