Rational basis question
Barksdale, Yvette
7barksda at jmls.edu
Thu Dec 1 21:17:22 PST 2005
Hi John:
I am sending you a later response that I sent to Eugene off-list. Maybe
this will address some of your concerns (many of which though, I think,
really are objections to the wisdom of the law - which would clearly be
warranted. - however even very bad laws can survive rational basis
review - it becomes the legislature's job to correct its own errors.)
-----Original Message-----
> From: Barksdale, Yvette [mailto:7barksda at jmls.edu]
> Sent: Thursday, December 01, 2005 4:03 PM
> To: Volokh, Eugene
> Subject: RE: [BULK] - RE: Rational basis question - another
> take (which I still don't think works)
>
>
> Hi Eugene:
>
> I thought of one argument that might support your position
> that the journalist scheme would not pass rational basis
> review (although I still think it won't work in the end.)
> Perhaps this argument reflects what is troubling you about
> the scheme. That is , that in your scheme there is a subset
> of persons who are essentially indistinguishable from those
> in the other category.
>
> These are the journalists that you referred who write for
> periodicals which have web sites where content is added
> continuously. They are performing the same job as the
> periodical's other journalists albeit on an irregular basis.
> Thus, argument, as to this subgroup there is no rational
> reason to treat them differently.
>
> This distinguishes Williamson, for example, in that the
> opticians and optometrists there, unlike these journalists,
> were in fact different,
> 1) in their training and 2) in the services that they could
> perform. The only question was whether these differences
> mattered with respect to suitability for duplicating lens,
> etc. and the other services the legislature prohibited the
> opticians from performing. Held the Court - the legislature
> could have had a reason, however weak, for treating these
> different professions differently for this purpose.
> Therefore, no EP violation.
>
> However, here, as to at least this subcategory of periodical
> web site journalists - they are essentially identical to the
> periodical journalists and thus arguably there is no reason
> for treating these identical groups differently. Thus,
> argument, equal protection violation unless the legislature
> (or perhaps the Court) requires all journalists for the same
> periodical (whether web site or print ) be treated the same.
> This also undercuts the "periodical folks are more
> professional than non periodical folks" since they are hired
> by the same company to do essentially the same job.
> Therefore, irrational to treat them differently.
>
> But in the end, I still don't think the argument works -
> because it is still just an argument that the category is
> overbroad - which generally doesn't work for minimum rational
> basis review. The line may be clumsy - but your remedy is to
> complain to the legislature, not the Court. (unless again,
> some reason for heightened scrutiny)
>
> yb
***/////////////////////////////////////////***
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
***/////////////////////////////////////////***
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of J. Noble
Sent: Thursday, December 01, 2005 8:37 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Rational basis question
Yvette's distinction between irregular bloggers and "professional
journalists" who are required to do "regular work," however it might
be fleshed out by statute or statutory construction, smacks of
licensing the press. Although "regular publishers" might be "more
likely to employ people who are more serious journalists (higher
professional standards, etc) than those who publish only when the
whim strikes them," I wonder where we would put Bob Woodward --
undoubtedly a "serious journalist," but Washington Post news articles
have carried his byline only twice in the last 13 months according to
the Post's archives. The careful cultivation of his reputation for
high-impact journalism is hardly whimsical, but it calls into
question the rational relationship between "serious journalist" and
"regular work."
I have as much difficulty seeing the rational basis in Eugene's
hypothetical /journalist's/ privilege that turns on the regularity of
the publication for which he or she writes -- or whether he or she
writes for any particular publication at all (as opposed to
freelancing). I don't see how it bears /any/ relationship to /any/
government interest except limiting the availability of the privilege
in the interest of the public's right to every man's evidence; but it
does that arbitrarily -- wholly ignoring whatever interests are
ostensibly served by the privilege. The hypothetical that people who
write for "newspapers, magazines, and other periodicals" might not
include ad hoc, as-warranted, irregular publications at least allows
for the avoidance of the SDP issue by statutory construction. But if
it's relatively easy to conclude that the statute was not intended to
exclude publications that elude a traditional definition of
"periodical," it appears to categorically exclude book authors if the
quoted language is representative of the statutory privilege. Should
Bob Woodward think twice before he saves the good stuff for Simon &
Schuster? You could pass the red-face test drawing a distinction
between The Volokh Conspiracy and The New York Times, but I defy
anyone to come up with any plausible rationalization for a privilege
that would protect the sources for Judith Miller's daily dispatches
from the VP's Office, but not the sources for Woodward's months-long
investigations because they're reported irregularly and at
book-length.
The problem of carving out a journalist's privilege from the general
rule that "the public ... has a right to every man's evidence," seems
nearly impossible. You can circumscribe the lawyer/client,
doctor/patient, and marital-communication privileges. Lawyers,
doctors and marriages are licensed. But I don't see any way to define
"journalist" unless we license them as well, or extend the privilege
to everyone who gets paid for the story; and that strikes me as not
very rational if it means you need a publisher before you can promise
to protect a source that you need to get the story.
The definitional problem, together with the now all too obvious
potential for abuse by propagandists that use the privilege to
conceal rather than reveal the perfidy of the powerful, leaves me
inclined to the federal status quo -- the privilege belongs to those
"serious journalists" whose "higher professional standards" mean that
they are willing to serve out the term of a grand jury behind bars
when they promise to protect the identity of a source. The rational
relationship between the journalist's demonstrated commitment to
getting the story and protecting the source /at a cost/ -- instead of
routinely and reflexively-- would have a rational relationship to the
real public importance of the story (which is now too often spin if
not deception) and the real need to protect the source to get the
story (which is now too often needless if not just self-serving).
/That/ rational relationship might limit the journalist's exposure to
contempt, while providing a safe harbor against a felony charges of
obstruction of justice, which you or I would face if we were
harboring Scooter Libby. The exposure to contempt would be still be
tempered by the prosecutor's inclination (influenced by public
opinion) to distinguish between journalists and sources whose
reliance upon the privilege is in good faith and serves the public
interest, and those that aren't and don't. That's really the federal
status quo revealed by the Plame case, and I don't think it worked
out too badly.
You could further temper the exposure to contempt, guard against the
abuse of prosecutorial discretion, and even enhance the privilege
vis-a-vis the federal status quo, if grand juries were instructed
that the subpoena power is /theirs/, and that they can withdraw their
subpoena if they decide that locking up a journalist would not serve
the interests of justice. I assume they have that authority, but
correct me if I'm wrong. I might even go so far as to give the grand
jury the sole authority to move the court to hold a witness in
contempt. Let the prosecutor draft the motion the same way that he
drafts an indictment, and let the judge deny the motion as readily as
he can dismiss an indictment, but why not let the grand jury decide
in the first instance whether the subpoenaed witness's refusal to
testify is in contempt of the grand jury's authority, and whether
holding the witness in contempt (and in jail) will advance or
frustrate the grand jury's investigation?
John Noble
At 7:42 PM -0600 11/30/05, Barksdale, Yvette wrote:
>Hi Eugene
>
>I logged on to ask my originalist justice question - but, since I'm
>on-line I'll take a stab at this.
>
>One possible distinction between anytime info blogger types and
>regular publication types might be a legislative intent to
>distinguish between professional journalists who write for
>publications which have a committment to publish - and thus require
>some type of regular work my their staff - and those who write for
>publications which come out only when the issuer decides to publish.
>The legislature might have concluded that the regular publishers are
>more likely to employ people who are more serious journalists
>(higher professional standards, etc) than those who publish only
>when the whim strikes them. Although this category may not be
>perfect (NYT web sites, etc) - perfection is not required for
>rational basis review -and the legislature could decide to draw the
>line at the publications who commit to post content - rather than
>those who only do so at their own whim.
>
>yb
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
>Sent: Wed 11/30/2005 5:27 PM
>To: conlawprof at lists.ucla.edu
>Subject: Rational basis question
>
>
>
> Various journalist's privilege statutes provide protection for
>people who write for "newspapers, magazines, and other periodicals."
>Periodical is generally defined as something that publishes at a fixed
>or regular interval. Print publications have long published at fixed
>intervals because it was uneconomic to publish material as it was
>written. But online, old media -- CNN.com, NYTimes.com, etc. -- as
well
>as new large media (Slate.com) and new individual media (blogs) post
>things as they arise, usually several times a day but at no fixed
>schedule.
>
> Let's assume that a court interprets, as a matter of statutory
>construction, "newspaper" and "magazine" to mean strictly print
>publications, and "periodical" to mean a publication that's published
at
>a fixed or regular interval. Would the resulting distinction between
>(1) a newspaper or a Web site that deliberately posts new material only
>once a day (as, for instance, OpinionJournal.com's Best of the Web
>does), and (2) the newspaper's Web site / slate.com / InstaPundit.com,
>which add new material whenever old material is posted pass the
rational
>basis test? Or could one argue that it's irrational for a publication
>to be treated as less entitled to a journalist's privilege simply
>because it publishes not daily or weekly but several times a day?
>
> Eugene
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