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When Can You Make a Reporter Testify?

By Brandt Goldstein
Posted Tuesday, June 25, 2002, at 11:06 AM ET

The United Nations war crimes tribunal ordered former Washington Post reporter Jonathan Randal to testify in the trial of Radoslav Brdjanin, a Bosnian Serb official accused of ethnic cleansing. Randal interviewed the accused criminal in 1993, and the court wants him to confirm the accuracy of the quotes in his story.

William Safire attacked the court's order in Thursday's New York Times, warning that the ruling could endanger reporters and harm their ability to gather news. But would Randal have been treated any differently by an American court?

In a New York state court, probably not. Journalists are protected in most states by "shield laws," which safeguard the press from having to reveal the identity of sources or other information sought by the government. Some shield laws, including New York's, protect journalists from testifying about nonconfidential matters like an on-the-record interview—unless the information is critical for the prosecution and unavailable elsewhere.

The information sought here isn't critical. Prosecutors are presumably building their case on evidence more damning than Randal's 1993 interview, in which Brdjanin talks about pushing non-Serbs out of Bosnia. There's also a better source for the same information: the translator on whom Randal relied to interview Brdjanin.

But there's a twist to this case that probably would force Randal to testify in a New York court. According to Safire, Randal voluntarily spoke with a U.N. investigator and verified the accuracy of his article. Bad move. Under New York law, by discussing the article with, say, a detective, Randal would waive his journalistic privilege. In which case he'd have to slog into court, at least to testify on the accuracy of the story.

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Brandt Goldstein is the author of Storming the Court (Scribner 2005), the story of Yale law students and human rights lawyers who shut down the first Guantanamo detention camp.
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