A July 1 podcast of NPR’s On the Media program contained the most clearcut description of a reporter’s privilege regarding sources and why it should not apply in the Rove case.
GEOFFREY STONE: Exactly. The critical mistake, in my view, that the Times has made, and Time Magazine up till this point has made, is to mistake what is really a source privilege with what they would like to have as a reporter’s privilege. When we talk about the attorney-client privilege or the doctor-patient privilege, or the reporter-source privilege, the reason for the privilege is not to protect the lawyer or the doctor or the reporter. It’s to protect the person who’s disclosing the information from the fear that if he makes that disclosure, it will later get him in trouble. And that’s the entire reason for the privilege. The distinctive feature about this situation is that the individuals who made the disclosure were committing a criminal offense in doing so, and there’s no public policy in protecting their identities. In the doctor-patient privilege, when a patient seeks advice from the doctor not to treat a medical ailment but in order to commit a fraud on an insurance company, the privilege does not apply. All I’m saying is the exact same thing should apply in the journalist-source situation. I believe there should be a very broad journalist-source privilege that should cover 99 percent of the situations. I believe in a much more aggressive privilege than even most people who want a privilege. But I don’t believe it covers this particular situation.