In the recent hullaballo over the Miller and Cooper cases, much suggestion has been made, on dKos and around the blogosphere, concerning the purported need for a federal "shield law" to protect reporters from divulging the identities of confidential sources. Ostensibly, such a shield law serves to promote the function of the press because it gives confidential sources a greater feeling of security, and makes them more likely to come forward. If their revelation of information is itself a crime, the protection gives them greater security that they will not be discovered.
Others argue -- largely based on the Miller and Cooper cases, relating to the leak of the Valerie Plame's identity as a CIA officer in apparent political retaliation for her husband's revelations against the Bush Administration -- that shielding anonymous sources is undesirable, and lets real criminals, doing real harm to the public interest, go free.
Below the fold, I propose an alternative solution...
So how do we resolve this conundrum? Is there a law that could be put into place that would provide protection to "good" whistleblower leak sources while not shielding "bad" retributive leak sources?
I suggest that there is, modelled after the more general "Choice of Evils" defense in criminal law (see, e.g., Model Penal Code Section 3.02). I'll call it the "Whistleblower's Justification" defense. Something to effect of (and why, oh why, will dKos not let us use type attribute with ordered lists to make them lettered? ah, well, at least we can nest them):
- A disclosure to the public, or to a person whom an actor expects to disclose the information to the public, is justifiable provided that:
- the disclosure concerns an unlawful act (including an attempt, conspiracy, or solicitation to comit an unlawful act) that the actor believes has been committed, or is being committed, by another person;
- the actor believes the unlawful disclosure is necessary to prevent a harm or evil which would occur as a result of the unlawful act disclosed, or to arrest an ongoing harm or evil resulting from that act;
- the harm or evil the actor expects to be avoided by such disclousre is greater than that the actor expects to result from disclosure;
- When the actor was reckless or negligent in appraising the necessity or the relative degree of harm to be avoided and created by disclosure, the justification afforded by this provision is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
So, what say you?