Federal Shield
For Journalists
Is No Panacea
{snip}
But, since the Miller case arguably involved a crime being committed, it is unlikely her own case would have been changed by a federal shield law. Last week, New York Times Executive Editor Bill Keller admitted as much in a television interview on "The NewsHour with Jim Lehrer."
Some supporters of a shield law say a distinction needs to be made between a source who discloses information for the public good (a whistleblower, for instance) versus one who discloses information to commit a crime. Geoffrey R. Stone, a Constitutional law professor at the University of Chicago, says that no reasonable shield law would protect Miller if her source used anonymity to break the law, especially if the information is of no public value. He compared the situation to that of lawyers and doctors, whose legally guaranteed privilege of confidentiality disappears if they are party to a criminal act by a client or patient.
"If a patient goes to doctor trying to figure out how to commit fraud, then privilege doesn't apply," says Mr. Stone. (His argument was cited by special prosecutor Patrick Fitzgerald in legal briefs last week.)
Some advocates of a shield law say it must include an "absolute privilege" for journalists against having to disclose the identity of their sources in federal cases, even those involving national security. Already, however, the authors of the shield law bills are facing the reality that such a version will never be accepted. So they're considering revised language that would pare back the absolute protection to provide for special cases of "imminent" threat to national security.
http://online.wsj.com/public/article/SB112105123966781923-9RfmaR3HHh7DDxJBLiI786o9NjI_20060711.html?mod=blogsTimes' Miller pushes federal shield law
http://www.cnn.com/2005/LAW/10/19/cialeak.miller.ap/