Life of Privilege
Why the law protects some private relationships and not others.
Debate over whether journalists should have the right to keep secret the identity of confidential sources has intensified in the wake of recent court rulings arising from the Valerie Plame episode. Controversy over the so-called "reporter's privilege" provides a nice window into a bigger basket of conundrums about legal privileges in general—including the question of why we have them at all, who should have them, and how far their protections should extend. Privileges recognized by the law abound: attorney-client, clergy-penitent, psychotherapist-patient, doctor-patient, husband-wife, accountant-client, executive privilege, the state secret privilege, the informant's privilege, and the privilege against self-incrimination. (Cultural conventions also recognize a bartender-patron privilege, though this is difficult to enforce in a court of law.)
The problem is that privileges are by their nature in tension with other legal values such as transparency and the search for truth. As the Supreme Court observed in the "Watergate Tapes" case, United States v. Nixon, "these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." Assessing whether to create a new privilege, then, always involves a delicate balancing of competing goods.
The physics here are not Newtonian. During Watergate, most of the country was clamoring for Richard Nixon to reveal his confidential Oval Office conversations, and indeed the Supreme Court ultimately held that the search for truth in a criminal trial trumped the president's claim of executive privilege. Yet the entire Watergate investigation was driven in part by the aggressive efforts of investigative journalists such as Bob Woodward and Carl Bernstein of the Washington Post—investigative efforts that were substantially aided by promises of confidentiality extended to sources—most famously "Deep Throat."
Privileges may derive from legal tradition, what lawyers call "common law," from statutes, or rules of evidence, or even from the Constitution—as in "taking the Fifth," the president's "executive privilege" or the attorney-client privilege—bolstered by the Sixth Amendment's guarantee of effective assistance of criminal counsel.
Different privileges operate in different ways. The privilege against self-incrimination is unique in that it does not protect communications between two or more persons but resides in an individual who may elect to stand mute and not be forced by the law to offer testimony that might tend to incriminate her. Most privileges, however, protect communications between people in situations where the parties are talking to one another with the understanding and intent that their conversations will be keep secret. These privileges exist to encourage candor or protect privacy, and the whole point is to place certain communications outside the glare of public scrutiny and beyond the intrusive processes of the law. Although in general we seek "every person's evidence," in some instances this value is tempered by the reality that in the absence of a privilege, no evidence would exist, because the privileged conversation would not happen.
The curious "informant's privilege," for example, empowers a prosecutor to keep secret the identity of a police informant on the theory that nobody is going to rat on Tony Soprano if the prosecution won't protect the ratter's name. (More on Tony Soprano follows.) The so-called reporter's privilege, in contrast, is somewhat unique in that the point of the conversation between the source and the journalist is precisely the opposite: public dissemination of the content of the conversation. The journalist and the source both have agendas, and both include getting the story out. The secret is not what the source said but who the source was.
Privileges have always been controversial. Some question whether they really accomplish much in the first place. Take, for example, the "spousal privileges," an ancient privilege that prevents courts from forcing one spouse to testify against another in criminal cases. This means you can actually marry into a privilege—a criminal defendant may secure the silence of a witness by marrying her—a reason for wedlock less admirable than most but better than some. There is a broader privilege that prevents courts in criminal or civil cases from forcing disclosure by either spouse of the content of confidential conversations that take place within the marriage. Detractors of the spousal privileges argue that it is silly to maintain that these privileges somehow promote marital candor or harmony. Couples will say what they will say and be at peace or discord for lots of reasons, but it is unlikely that the laws of privilege are high on the list. It is hard to believe that the nature of our national bed talk would be altered by changes in the Federal Rules of Evidence.
Yet is it possible to make the case for favoring the spousal privilege without resorting to arguments about encouraging frank and candid exchanges between marital partners. The spousal privilege resonates with our ancient intuitions and expectations about intimacy, privacy, and loyalty. A society that cherishes the loyalty of spouse to spouse, till death do them part, will not force a spouse to choose between the loyalty and love of partner and obedience to the commands of a judge.
Deciding which relationships deserve the special cloak of privilege is thus an ancient and ongoing struggle. The Supreme Court rejected, for example, the argument of academics that statements made during the tenure and promotion process at universities should be privileged on grounds of academic freedom and the need to encourage candor in peer evaluations. Federal courts do not recognize a doctor-patient privilege, although most state courts do, and a few even extend the privilege to conversations with dentists—at least when matters as sensitive as discussions of HIV are involved. Federal courts do, in contrast, recognize a psychotherapist-patient privilege, though not without controversy. The 1996 Supreme Court case Jaffee v. Redmondreasoned that effective psychotherapy requires an atmosphere of confidence and trust that fosters open disclosure of facts, emotions, memories, and fears. Returning to The Sopranos —you can't exactly expect Tony to come clean on all his mob hits, betrayals, and schemes if his therapist is a threat to spill to the feds. In his apoplectic dissent in Jaffe, Justice Scalia asked when it was, exactly, that the psychotherapist became so indispensable to our national mental health, and he noted that for most people frank discussions with one's mother, friends, or bartenders are probably more crucial to emotional and mental equanimity, though no privilege extends to any of them.
Turning to the reporter's privilege—now under especially intense scrutiny in courts and Congress, in light of a recent decision by the District of Colombia Court of Appeals arising from the Plame affair—the court held that no First Amendment reporter's privilege exists at all—and that journalists Judith Miller and Matthew Cooper should report directly to jail without passing go. Plame, the wife of Ambassador Joseph Wilson, was outed as a CIA agent by the journalist Robert Novak and others in the aftermath of the firestorm over the claim by President Bush and Vice-President Cheney that Saddam Hussein was working a Niger-to-Iraq uranium connection to build an atom bomb.
Rod Smolla is dean of the University of Richmond School of Law.