Yearning for Mechanical Rule

Eugene Volokh, a U.C.L.A. law school professor who teaches First Amendment law and writes for the Volokh Conspiracy blog, addresses the issue of reporters facing contempt charges and risking jail because of their refusal to reveal sources in a New York Times op-ed piece -- You Can Blog, but You Can't Hide, December 2, 2004.

Volokh observes the conflicting social goals involved:

On the one hand, tips from confidential sources often help journalists ... uncover crime and misconduct.... On the other hand, some tips are rightly made illegal.

"What's the answer?" he ponders, before proposing a remarkably simple solution:

Lawmakers could pass legislation that protects leakers who lawfully reveal information, like those who blow the whistle on governmental or corporate misconduct. But if a leaker tries to use a journalist as part of an illegal act - for example, by disclosing a tax return or the name of a C.I.A. agent so that it can be published - then the journalist may be ordered to testify.

This is very neat. Except that, inexplicably, Prof. Volokh seems to be overlooking society's crucial interest in protecting journalists and leakers who expose certain kinds of information illegally -- for example, the Pentagon Papers.

The central purpose of the First Amendment, surely, is to prevent government attempts to suppress news -- including attempts to do so through legislation.

Perhaps Volokh's proposal intended only to expand journalistic immunity in some cases, and not also narrow it in others. But his wording -- "then the journalist may be ordered to testify" -- implies he does not believe a First Amendment defense for maintaining source confidentiality would be applicable when the source has broken the law (as when a leaker exposes important government lies).

What's missing in Volokh's analysis is the same key question that is ignored in recent New York Times news reports on this issue (see my Questionable Advocacy of Press Freedom): Is there a legitimate democratic interest in making the news available?

But this omission is not accidental in Volokh's case. In a brief email exchange, he tells me, "I think the First Amendment generally leaves judgment of social value to speakers and listeners, not government officials (such as judges)," and points me to his Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You (published in the Stanford Law Review in 2000), calling my attention to the section, "V. SPEECH ON MATTERS OF PRIVATE CONCERN".

Volokh doesn't believe that the social value of speech -- or the extent to which information is a matter of "public concern" -- should be a criterion at all in assessing whether the speech should be protected. His reason, in a nutshell, is that "public concern" is subjective, and applying the criterion invites the danger that increasing amounts of information will be deemed to be of only "private concern" and thus excluded from First Amendment protection. Private individuals could thus be barred by the government from exchanging such information among themselves.

Volokh's general opposition to a "public concern" criterion is in my view untenable. The criterion is clearly essential in resolving conflicts between free speech and other important social values (like, for example, national security). And the Supreme Court seems to agree. As Volokh's paper acknowledges, "the Court has often said in dictum that political speech or public-issue speech is on the 'highest rung' of constitutional protection [endnote cites Carey v. Brown, 447 U.S. 455, 467 (1980)].")

Volokh's fear of the subjective judgment that is required in applying a "public concern" criterion suggests a yearning for legal principles involving only unambiguous formulas which can be mechanically applied. He seeks to remove judgment from the judge's task. This is a hopeless quest.

Distinctions like public vs. private concern typically involve a gray area. People who oppose such distinctions for that reason often forget that even when there is a gray area, there still remain black and white areas. Yes, people are very fallible. But if we are to have any hope that the law can work, we have to rely on the ability of judges to distinguish black from white.

Protecting information of "public concern" is the overarching value of the First Amendment. Blinding judges to values would inevitably produce judgments that reflect their blindness.

Related: First Amendment Desecrated by New York Times