Thursday, December 01, 2005

Moral and/or legal dilemma

Let's say a Wall Street Journal reporter knows the whereabouts of Osama bin Laden, but refuses to divulge that information in order to protect her confidential source.

Can she be jailed? Or should we just throw up our hands and say "Oh well, she's protecting a confidential source. The sanctity of the press must be maintained!"

Maybe this is a bit too close to the decision edge to call correctly. So let's say, instead, that she knows the code which will, via remote control, disable atomic bombs set to go off in 100 American cities at noon today. Can steps be taken to coerce her to divulge that code?

Believe it or not, some people I wrestle with on a closed newsgroup on a daily basis are actually holding forth with the idea that we can't - and shouldn't - do anything.


Steve said...

Interesting. I really don't see this as a dilemma at all. To me it is fairly self-evident that the reporter's right to conceal her source is far outwieghed by the potentially deadly consequences of letting someone like Bin Laden remain free. The second example is even more of a slam dunk. Rights are not absolute. The people in this closed newsgroup are probably the same university students that were unable to make 'judgements' about the Holocaust or condemn Hitler because, after all, they weren't there and how could they possibly know the reasons for Hitler's apparent hostility toward the Jews. The inability of many on the left to make moral judgements is astounding.

RLess said...

I see the rights in question here as being comparable to intellectual property rights (a whole 'nother ball 'o wax, I know), in that the motivation in granting these rights is to motivate something that is in the public good.

In the case of IP rights, the "something" that's being motivated is innovation. The thought here is that, without a way to protect their innovations from theft (by copying), potential innovators simply wouldn't go to the trouble.

In the case of the "right to conceal sources" (is there a better name for it that that?) the "something" is public access to information. The idea here is that, if all potential sources were open to scrutiny (and possibly arrest), that most would simply choose to keep quiet.

In both cases, I think there's a strong argument that the right should be limited such that the benefit to society is maximized.

In the case of IP, patents and, in theory, copyrights expire, thus making the incentivized innovations available to all.

In the case of concealed sources, if the source is a huge public threat, as is stiplated in the hypothetical, I would argue that the public good is best served by piercing the veil.

How to define "huge"? Therin lies the rub.

Alan said...

Tarasoff vs. The Regents of the University of California.

Check it out.

Journalists, like Medical Doctors, Psychiatrists, Psychologists, Social Workers, Chiropractors, etc. need to have a duty to protect innocent third parties (society at large, for example).

It's not a dilemma to me, either.

What we don't need is to codify into law that the Feds can come in at their leisure and confiscate files, "in the interest of National security." Which is precisely what has happened with the professions I listed above. If there's something you don't want the government to know, your doctor (or psychologist, or chiropractor,doesn't need to know, either. The Tarasoff ruling was working fine.

Quite frankly, words like "coerce" in the OP make me a bit nervous. How do we intend to "coerce" these journalists to spill their guts?


Not to derail the thread too much, but I'm rather dismayed that, with one comment, this blog has already turned into a "Hey, let's bash *those* guys!" venue. steve makes a reasonably decent argument in the first half of his post, but then dives into a condemnation of "the left." Political discussion too often devolves into bashing and name calling, based on identification with a cause or ideology, and not on the merit of the argument at hand.

Eman said...

I might suggest a better hypothetical to be the case in which the reporter claims to know the IDENTITY of a person who claims to know the "magic code." If I understand it correctly, reporter's privilege is generally understood to relate to the protection of an informant's identity rather than the information provided by that informant.

Under that hypo, assume that a reporter claims to know the identity of a person who claims to know the "magic code." In this case, there's no longer a direct link between "reporter talks" and "millions of lives saved." The reporter may be mistaken. The source may not be available. The source may have been lying. The source may have been honest but mistaken. The source could lie now as to what he knows.

Even then, we might determine that the possibility of saving millions of lives may outweigh the countervailing principle in this particular case.

For a more realistic example, suppose a reporter quotes an anonymous source for the proposition that a local chemical plant is dumping a hazardous chemical into a local water source, potentially causing hundreds of deaths. In this case, we may also decide to abolish the confidentiality of the source. If we do so, however, we have to understand that we can only do so a few times before "anonymous sources" and their (at least perceived) benefits become a thing of the past. In our quest for more golden eggs, we may be killing the goose.

grognard said...

The first senario is tricky, the WSJ reporter is no doubt a conservative and is protecting the source but for what reason? Did Karl Rove tell her that Osama will be captured just before the election to ensure a Republican victory or does the administration know of his whereabouts but fears that taking him now will destabilise a country [Pakistan]that has nukes?

Eman is right about the second senario, if you do not tell the authorities about an attempted murder [mass or otherwise] you are an aiding a criminal activity, there is no speech protection under the law. The reporter would not face jail time for refusing to reveal the source, the charge would be murder and the death sentance.