There has been no federal legislation so far conferring the privilege on journalists although there have been many proposals on the subject.
Till 1970, sixteen States in the U.S.A. had made the legislative determination that “protection of the identities of newsmen’s informants from disclosure before judicial and legislative proceedings was necessary in order to maintain a flow of information to the public and it would not unduly hamper the Judicial and Legislative process.”
The statutes enacted in the various States generally protect the confidential sources of persons connected with, engaged on, or employed by specified news media, while only three have defined the term “Newspaper.”
Three others apply the privilege to other periodicals also; seven apply it to Press Associations, six to Radio Stations. In twelve of the States recognising the privilege, it is absolute.
As there is no federal law as yet on the subject in America, an interesting case could be quoted. “The Caldwell Case” arose out of a statement made by the Black Panther leader Mr. David Hillard which appeared in the December, 1969 issue of the New York Times, under the by line of Earl Caldwell, a Black correspondent for The Times, who specialised in covering the Panthers.
Two months later, a federal Grand Jury in San Francisco, investigating a broad range of Panther activities, served a subpoena on Mr. Caldwell ordering him to testify before the Grand Jury and to bring with him notes and tape recordings of his interviews with Panther leaders.
Caldwell refused on the ground that he could not testify without irreparably damaging the confidential source relationships he had built up over the months. This was soon confirmed when Black militant sources in several cities refused to talk to the journalists from The Times, Newsweek and A.B.C.
The federal district court judge ruled that “Mr. Caldwell was obliged to appear before the Grand Jury, but need not reveal confidential sources, associations or information, unless such statements or information were given to him for publication or public disclosure.”
In the “Branzburg Case,” Mr. Justice Douglas in his dissenting opinion observed, “The function of the press is to explore and investigate events, inform the people what is going on, to expose the harmful as well as the good influences at work.”
As against all this, there has been criticism also of the privilege that “it might hinder the search for truth.” But such hindrance from time to time would have to be endured in the greater public interest of protecting the source in order to invite the type of information that can only be secured confidentially.
Secondly, the fact that even now journalists prefer to go to jail rather than disclose sources indicates that the mechanisms used are rather ineffective. A statute granting such privilege would be a declaration of public approval of confidential sources.
Furthermore, the privilege would be unique and different from other privileges. In all other privileges, it is the “communication” which is privileged, whereas in the case of a journalist, it is the “source” which is meant to be kept confidential.
This may also be more helpful to the investigative process in the long run and to the administration of justice. In instances of Governmental corruption, the value of the press as a recipient of such information is particularly important.
To sum up, we could say that in all fairness to society and in the greater public interest such a privilege must be conferred on the newsmen in order to:
(1) Make a flow of free and undiluted information available to all times about matters of public interest.
(2) Make the legal position of such informers secured.
(3) Protect the people from State high-handedness or corruption in order to preserve the ideals of a true democracy.
(4) Create an atmosphere of truth and forthrightness in the society to protect its people from all forms of corruption, exploitation and encroachment.
In order to achieve all these, the law must try to find a just compromise between conflicting interests, so that the journalist can conform to both of his duties as a citizen and as a professional person. The privilege should be carefully phrased in order to avoid its being misused.
The peace of 1919 was made in an atmosphere of hatred and the desire for revenge; economists saw that its financial provisions were unworkable, and that its vindictiveness would breed war. Mr. J. L. Garvin in the Observed was one of the few to point out publicly these and other disabilities.
His prophecies have mostly been fulfilled by the rise of Nazi-ism, intensified nationalism and rearmament. There is the same difference to-day between the views of the experts and those which appear in the Press.
The most Nelsonian optimist can see that there are several problems needing quick solution unemployment, slums, traffic mortality, to say nothing of matters of foreign policy. Most educated people believe that workable solutions for our material ills exist but they do not stand much chance of being tried, because the mass of voters who decide upon the character of our governments have never even heard of them. For this the Press is largely responsible, because it suppresses or distorts all but ‘safe’ views and accepted theories.
The question is sometimes asked “What can be done about it” and it would be cowardly to say that there is no answer and that nothing can be done. To say that the first thing is to understand it fully sounds platitudinous, but a clear understanding of the problem shows some of the directions where a start can be made.
“The real problem of the ‘stunt Press’ consists not in the mischievous ingenuity of this or that journalistic pander, but in certain social, psychological and industrial conditions.” It is often said: “A single person can do nothing about it; ifs hopeless.” If it is hopeless, it is because so many relapse into that attitude.
The shirking of responsibility adds power to the Press. It flourishes on acquiescence. The Press can become an insult to its readers, but because readers take this treatment lying down they help to perpetuate it.
The longer the Press continues in its present ways, the more difficult it will be to improve. It has created a taste for, its product, and it reinforces and mobilises emotions and attitudes which had never found such a mouthpiece before. The problem is not simple, but unless each person plays his or her part, nothing can be done.
(Compare the accident problem on the roads.) The ways in which he will exert his influence will differ. The Press is a public institution for which we pay willy-nilly; we should aim at making it provide as good service as the Post Office.
Some people will try to follow up the implications of Norman Angell’s dictum, just quoted. Some will be able to note cases of inaccuracy, suppression and other practices, and will make these known to the papers themselves, both the guilty one and its rivals. Newspaper managements are sometimes very sensitive to public opinion, and a number of determined readers could make them more so.
(The churches and other bodies are feeble here; the three of an organised boycott of the products advertised in a particular paper would soon modify its behaviour.) Others will find opportunities in education.
Journalists themselves, as is shown by one of the examples in the Case Book, are aware of the defects of the Press, but the controllers’ ideas of what the public wants prevent them from doing much to improve the papers they work for.
It is also important that we should decide what we want from the Press. First of all, news, and if necessary, a context of information to make the news intelligible. That sounds obvious enough, but, as I hope to show, the presentation and selection of news is not satisfactory.
Selection there must be, because of the great bulk of matter which comes into the office; but we should require that the selection should be made in accordance with an intelligent standard of what matters and what does not.
Ideally we would expect that papers of opposed views should choose the same items for the main page; and that they should withhold no relevant information. The paper’s political and economic views should be expressed mainly in the editorial columns or special articles, without colouring the news.
We need hardly expect a paper to be impartial that is impossible but we have the right to know from what angle the news is selected, and what interests the paper is serving. In short the news should give an accurate and balanced account of what is happening and the comment enable the reader to come to an opinion without suspending rational judgment.