A Word to You About Media and the Law

This morning, I had a massively old-fart moment thinking about something that was, even being completely fair to every generation, truly better in the Good Old Days than it is today. Back when snakes had legs and I was young, news media people were permitted to protect confidentiality of their sources. If someone asked a reporter not to tell anyone who he was because he was afraid of the unjustified consequences of having his identity made public, the reporter could agree to it safely, because he knew he wouldn’t be forced to violate the confidentiality. There was even a court case in the 1980s in which reporter Michael Harris was on the witness stand in court and the opposing lawyer asked him to disclose the identity of a confidential source. Harris refused, and the opposing lawyer didn’t even ask the judge to force him to disclose it, and the judge never said a damned thing. Regardless of what the law formally said, it was just accepted practice that, if a reporter agreed not to tell anyone who you were, he wouldn’t be forced to.

People probably don’t remember those long-ago events because things are totally different today. Partly thanks to the aftermath of September 11th, there were famous cases in which American judges did order American reporters to disclose the identities of confidential sources, and, when they refused, the judges sent them to prisonĀ  You probably don’t remember any of that, either, because that’s now old news too. Today, it’s generally accepted that nobody can say anything confidentially to the news media and expect to remain anonymous, with the result that every statement made to the news media must be assumed to be totally public. That leads to the news media simply never finding out anything that people don’t feel safe in disclosing to the whole world, which, frankly, turns some otherwise smart and capable reporters into clued-out idiots. This is one reason why today’s “news” is totally a combination Entertainment Tonight and Question Period in the House of Commons.

You can guess without me telling you what I think of the whole thing. But there is an additional component that applies more broadly than to the news media. Certain non-media professions, such as lawyer and priest, have always had not only the right to keep certain things confidential, but the obligation to do so. Lawyers mostly still retain those obligations and rights, and, judging from my eight and a half years working in legal support, protect confidentiality obsessively. But what if every competent adult had the right to preserve confidentiality? It would have to be carefully managed to prevent abuses and frivolities, but laws or even a constitutional amendment could be drafted that carefully described the specific conditions under which any American (or Canadian) citizen would be safe in keeping secret something another person had told him, even if a judge could potentially order them to disclose it. That would force everybody to think hard about what it was safe to tell someone else confidentially, as well as what they could agree to keep confidential. And, although most people are already pretty good at thinking, some extra practice at thinking hard never hurt anyone, plus there would be an additional element of trust and freedom in prudent private conversations, a greater amount of interprersonal responsibility, and the necessity to exercise sound judgment just a little bit more.

So how about it, legislators? Are you reading this, and what do you think about drafting a bill?

One thought on “A Word to You About Media and the Law

  1. Confidentiality?? That’s so out of style these days.

    It’s kind of ironic, I now have to sign dozens of forms acknowledging the fact that I have confidential medical records, confidential financial records, even confidential records for the dog at the vet. It’s so completely backwards, because it’s my information, so why am I the one signing? I’m the one signing so I’ll have the illusion of privacy.


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