A balance must be struck, and one compromise would be to allow a leaker to defend himself by proving that he disclosed grave wrongdoing. If that were the rule, instead of a reporter’s privilege, a leaker who acts in the public interest—and only that kind of leaker—would escape prosecution. That’s who should benefit from the law, not the journalist who profits from him.Well, to be fair, such a leaker would escape conviction; but not prosecution. It would be a defense to the crime, not a "get out of prosecution free" card.
Nobody gets one of those; except, oddly, journalists. And the question is: do they deserve one? Because the ones who get that, are the ones who work for large organizations we call "news" organizations (FoxNews? Is it really a "news" organization, or a propaganda arm? Is it any different than a group of bloggers, except it has a larger megaphone?). Slippery slope, indeed. Would a blogger escape prosecution? Would Glenn Greenwald, if he came to America?
James Risen is taking his case to the Supreme Court. James Risen works for the New York Times. Coincidence? I think not. He isn't being prosecuted for a crime, but he could be:
That being the case, you might also think that reporters who publish such disclosures could themselves have acted criminally—by aiding and abetting a crime. The government has never prosecuted reporters on such a theory, however; all that it wants is for them to testify so that it can convict a leaker like Sterling, just as any other witness to a crime must testify in court. And so if we agree that the government can legitimately prosecute Sterling for disclosing information, then we ought to agree that the government can legitimately compel Risen to disclose at trial whether Sterling was his source.
Or be prosecuted for aiding and abetting a crime. That really isn't a 1st Amendment case, anymore than carrying a handgun into a theater and shooting a man for throwing popcorn at you is a self-defense case, or a 2nd Amendment privilege. Journalists in this country are largely left alone because they have a big megaphone; not because they have special Constitutional rights.
Does that special privilege extend to making the decision about what should be known to the public, and what should not, when that knowledge has already been decided by force of law?