Unscheduled Unscheduledness

One of the good things about a blawg is that one does not have specific scheduling requirements. No briefs are due, nor due diligence searches required. That's also one of the bad things. For the next month or so, expect to see things irregularly and shorter, with fewer links outside than normal; I'm mostly working on the blawg away from the office, in free minutes between other tasks (like entering meeting notes into the laptop).

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Earlier this week, the Supreme court denied review of an appellate court's rejection of the so-called "reporter's privilege" to maintain source confidentiality. The problem is not with the abstract question of a "reporter's privilege"; it is with defining the boundaries of a "reporter's privilege". The potential problem is perhaps best epitomized by Zurcher v. Stanford Daily, a 1970s case on searching newspaper offices. In Zurcher, the police obtained a search warrant (clearly the right thing to do, and for which I give them credit) to search the student newspaper's offices for photographs that might show who instigated a "violent clash" with the police. The Court held that this was acceptable.

There are several obvious problems, though. The ex parte nature of warrant proceedings seems to me insufficient, especially when the precipitating event is open to interpretation. If I recall correctly, the police were assuming that the instigators necessarily were student agitators… and that, to me, seems an overly optimistic assumption in the 1970s during student protests. Then, too, the nature of the material sought is rather different; a photograph of a public gathering seems of a different nature than a clandestine photograph, or a reporter's notes of telephone calls, or the MUDs for the newspaper/reporter's phone that would show date, time, and phone number of other contacts.

What this really points out is that sometimes easy cases are the ones that make bad law. The just-rejected case allegedly involves national security—the notorious Wen Ho Lee matter. Should that extend to all circumstances? And should it extend to all aspects of national security, such as a later defamation-like suit when the national security concerns have been refuted? Or is there a better solution, such as applying the attorney-work-product rules to reporters' materials? I don't know the answers to all of these questions; I can be sure, though, that even a decision in Drogin v. Lee and Thomas v. Lee would not have provided satisfactory answers.