Yesterday, Margaret Sullivan, the New York Times‘s public editor, published a strong attack on Michael Kinsley‘s “book review” of Glenn Greenwald‘s book covering the Snowden affair called No Place to Hide. Kinsley asked for an opportunity respond, and it is published on the public editor pages today.
One of Kinsley’s misleading statements in his rebuttal is the following:
The Supreme Court has repeatedly turned down opportunities to create a “journalist’s privilege.” Sullivan may not like this. Heck, I don’t especially like it. But it’s a fact.
This is not a fact; it is in fact false. The Supreme Court has declined to create a reporter’s privilege in one case only, not repeatedly. Via Constitutional Law Reporter:
The Supreme Court has only considered the existence of a reporters’ privilege once during its storied history, and it ultimately concluded that the First Amendment does not afford such protections. Yet, Branzburg v. Hayes is cited today as establishing a test for determining when the reporters’ privilege can be used to prevent confidential sources and information from being compelled.
* * *
The majority, however, refused to close the door completely. It noted that “official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources” could be unconstitutional.
Justice Lewis F. Powell Jr. went even further in his concurring opinion. In addition to making it clear that “the Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources,” he also stated that “the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”
Justice Powell then went on to describe a balancing test that is still used in most federal courts when determining the existence of the reporters’ privilege. “[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions,” Justice Powell explained.
However, when one looks at the federal Courts of Appeal, the result is stunningly different. Via Wikipedia:
Reporter’s privilege in the United States (or sometimes journalist’s privilege), is a “reporter’s protection under constitutional or statutory law, from being compelled to testify about confidential information or sources.” It may be described in the US as the qualified (limited) First Amendment right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery. 
The First, Second, Third, Fourth, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporter’s privilege exists. Furthermore, forty states and the District of Columbia have enacted shield laws protecting journalists’ anonymous sources.
So until the Supreme Court decides to hear a case involving the split in the opinions of the various circuit courts, there is ample existing law that there is a reporter’s privilege.
Nonetheless, my favorite declaration in Kinsely’s attempt to rehabilitate himself is the following:
Like most people except Glenn Greenwald, I think the issue is complicated and I have other things to do.
If Kinsley has other things to do, by all means move on and don’t let the door hit you in the ass on the way out. Apparently he was unable, though, to resist his continuing ad hominem attacks on Glenn Greenwald and now Margaret Sullivan.
- NYT Reviewer Fires Back at Public Editor for Lambasting Greenwald Piece (mediaite.com)
- Why Kinsley is Wrong About the Connection Between Democracy and the Publication of National Security Secrets (lawfareblog.com)