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Tuesday, July 05, 2005

Supreme Ruminations

With SCOTUS having denied cert on the Plame-related case, it looks like Time's fessing up sources (aha, it's Rove, that *&^%!) while the NYT's Judith Miller is getting ready to head for the klink. 

PrawfsBlawg's Dan Solove's got a interesting post up today on the Plame affair over at Balkinization; in his discussion of the policy question about journalist privileges, Solove argues that reporters should be permitted to withhold sources from government prosecutors or grand juries even when the leak itself constitutes a crime (as in the Plame case, where the divulgence of a spy's name occurred), as long as the leaker's leak was in the public interest.  I'm not sure I agree with this suggestion, but it is an interesting issue. 

Dan thinks this public interest exception is necessary if Congress or other legislatures were to pass a statute affording reporters a privilege to resist disclosure of sources to law enforcement.  I can obviously see the costs associated with a "no-government leak under threat of criminal penalty" rule: secret government perfidy continuing ad infinitum. 

But I wonder if we would agree that such a no-leak rule should be prohibited in the private sector:  e.g., to punish and prevent corporate espionage, or say to protect people's privacy.  (Somewhat surprised Solove didn't think of the privacy angle here.)  That is, if an anti-leak rule exists (whether in private or public sectors), it promotes both organizational privacy (proprietary information, trade secrets) and personal privacy too.  In light of our previous discussions on Prawfs about internet vigilantism, I wonder whether the connection between "leaking" and "exposing" is more troublesome than initially supposed.

I suppose I"m not sure an anti-leak rule with no "public-interest" exceptions is all that bad.  And as the commentator to Solove's post acknowledges, there will be an implicit public interest exception inserted anyway by prosecutorial discretion; thus, arguably a failure to/decision to prosecute will be "punishable" at the polls if the executive makes the wrong move.  It's definitely a vexing issue.  And I'm most perplexed by the continuing uncertainty as to why Bob Jackass Novak seems to have endured the least trouble here.

Re: other SCOTUS detritus, my former criminal procedure professor, Bill Stuntz, offers a "frum" Christian's perspective on the Ten Commandments cases, explaining why there shouldn't be public displays of Ten Commandments or other religious imagery on public property--over at Tech Central Station.  Interesting, albeit not unfamiliar.  Hat tip to Jack Balkin (who is growing the Balkinization site with the addition recently of Brian Tamahana, Kim Lane Scheppele, and of course, the ubiquitous Dan Solove.)   

Posted by Administrators on July 5, 2005 at 11:41 AM in Law and Politics | Permalink


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