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No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying. They still have a 5th-a

No. What this holds is that (as has long been the case) there is no special journalists' privilege they can assert to avoid testifying. They still have a 5th-amendment right not to answer questions where the answers might incriminate the journalist themselves (rather than their source). However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime. In cases where the witness the government wants to compel could plausibly be themselves accused of a crime, the government can avoid being stymied by 5th-amendment assertions by just granting the witness immunity from prosecution. Then the possibility to assert a 5th-amendment right disappears, because if the person cannot be legally incriminated in the case (due to immunity from prosecution) they no longer have a basis for asserting a right against self-incrimination.

betterunix 13y ago
"However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime." Unless they are being charged with conspiracy: http://www.washingtonpost.com/local/a-rare-peek-into-a-justice-department-leak-probe/2013/05/19/0bc473de-be5e-11e2-97d4-a479289a31f9_print.html http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...
- _delirium 13y ago
  That's a good point. A plus side of such a precedent is that it might strengthen the position of journalists asserting a 5th-amendment right not to testify (assuming the government doesn't grant immunity up front). Conspiracy is so broad that anything they say about their relationship with the person in question could potentially be used against them, giving a good basis for invoking the 5th. On principle, though, it seems journalists typically wish not to appear as witnesses at all, which makes it harder for them to use that approach. Except in limited circumstances, like choosing not to appear as a witness in your own criminal trial, the 5th amendment doesn't protect failure to appear; to invoke it you'd have to show up on the witness stand and then refuse to answer questions whose answer you felt might be self-incriminating. Of course, you could blanket do that to every question except bare factual ones that ask for your name and the like. But you'd still have to show up, and on principle journalists seem to have a view that they should not appear as witnesses in such cases at all (which can lead to them being held in contempt of court for refusing to appear).

betterunix 13y ago

"However, usually this is not at issue, because the reporter republishing the material isn't a crime, so their testimony wouldn't implicate them in a crime." Unless they are being charged with conspiracy: http://www.washingtonpost.com/local/a-rare-peek-into-a-justice-department-leak-probe/2013/05/19/0bc473de-be5e-11e2-97d4-a479289a31f9_print.html http://www.washingtonpost.com/local/a-rare-peek-into-a-justi...

_delirium 13y ago
That's a good point. A plus side of such a precedent is that it might strengthen the position of journalists asserting a 5th-amendment right not to testify (assuming the government doesn't grant immunity up front). Conspiracy is so broad that anything they say about their relationship with the person in question could potentially be used against them, giving a good basis for invoking the 5th. On principle, though, it seems journalists typically wish not to appear as witnesses at all, which makes it harder for them to use that approach. Except in limited circumstances, like choosing not to appear as a witness in your own criminal trial, the 5th amendment doesn't protect failure to appear; to invoke it you'd have to show up on the witness stand and then refuse to answer questions whose answer you felt might be self-incriminating. Of course, you could blanket do that to every question except bare factual ones that ask for your name and the like. But you'd still have to show up, and on principle journalists seem to have a view that they should not appear as witnesses in such cases at all (which can lead to them being held in contempt of court for refusing to appear).