Rational basis question

Barksdale, Yvette 7barksda at jmls.edu
Fri Dec 2 14:37:00 PST 2005


John Noble writes: 
 
"There might be any number of rational ways to
do that, but one that covered a full-time New York Times reporter
(where the story about Monica's blue dress was spiked) and left out
Matt Drudge (where the story broke with an anonymous source) is
irrational -- not because it's under-inclusive, but because it's
wholly divorced from the asserted interest, and even
counterproductive"
 
HI John: 
 
The problem is that the distinction between periodical journalists and non periodical journalists doesn't just leave out Matt Drudge. It leaves out a whole class of people with web sites or blogs or newsletters that come out once in a blue moon who are posting whatever, whenever the mood strikes them.  The legislature clearly has an interest in excluding them. The fact that Matt Drudge gets caught up in the mix is just a consequence of the category being overbroad - again  -that's not a problem for minimum rational basis. 
 
I agree argument for heightened scrutiny because of 1st amendment - but not eugene's question.
 
Also, I agree it is likely that court would construe the statutory privilege to include web site journalists who work at a periodical journal, or even other web bloggers who publish daily, or weekly, - or at least regularly but not necessarily at the same time or on the same day - after all  the statututes likely predated blogging.
 
But I still don't think the legislative categorizing, however sloppy,  would be unconstitutional under minimum rational basis review.
 
yb

________________________________

From: J. Noble [mailto:jfnbl at earthlink.com]
Sent: Fri 12/2/2005 2:27 PM
To: Barksdale, Yvette; conlawprof at lists.ucla.edu
Subject: RE: Rational basis question



The rational basis test is not a very high hurdle, but doesn't it get
elevated when the law implicates a constitutional right? Here, it
seems to me, we're in First Amendment territory. I'm not suggesting
that the First Amendment entitles reporters to a testimonial
privilege (I don't think it does), but the discrimination among
journalists should warrant more exacting scrutiny to the extent that
the statutory privilege is in service of a free press and favors some
of the press over the rest.

That answers a different question than Eugene asked, but even pure
SDP, simple rational basis, has to have some significance -- unless
it doesn't have any -- and I cannot come up with /any/ rationale for
the distinction between Judith Miller's articles and Bob Woodward's
books that I posed below. You can usually dispense with the equal
protection issue raised by under-inclusiveness in a rational basis
context by attributing it to the infirmities of the legislative
process, but at some point it has to cross the line from arguably
unwise or necessarily inexact to baldly irrational. Consider, for
example, legislation that balanced the public interest in the
entitlement to every man's evidence against the public interest in a
vigorous free press by providing that journalists whose names began
with the letters A-M would be allowed to protect anonymous sources,
but journalists whose names began with the letters N-Z would not; or
by distinguishing between reporters who worked for publicly-traded
versus privately-owned publishers.

Legislation that creates a privilege for journalists without
swallowing the general rule that the public is entitled to every
man's evidence might be necessarily under-inclusive in order to avoid
extending the privilege to every witness who owns a notebook or
tape-recorder; but if the classification is going to have a rational
relationship to the government interest, you have to begin by
identifying the government interest. The government interest here is
not in freeing journalists to dig up dirt without the prospect having
to testify to what they know. The journalist doesn't need any
encouragement to dig up dirt, and it's his job to tell us what he
knows (N.B. to B. Woodward). The government interest is in protecting
anonymous sources of information of public significance from the
prospect of retaliation for its public disclosure. The rational
approach to that government interest doesn't begin with an
underinclusive definition of "journalist" (full-time employment) and
end with an overbroad definition of protected sources (anybody they
talk to). It rationally requires an inexact definition of
"information of public significance," an inexact definition of
"prospect of retaliation," and an inexact classification of the
persons who can provide public disclosure in return for a promise of
anonymity.

That last classification has to be rationally related to the public
disclosure expectation. There might be any number of rational ways to
do that, but one that covered a full-time New York Times reporter
(where the story about Monica's blue dress was spiked) and left out
Matt Drudge (where the story broke with an anonymous source) is
irrational -- not because it's under-inclusive, but because it's
wholly divorced from the asserted interest, and even
counterproductive. That classification isn't even directed, much less
rationally related, to the (legitimate) government interest in public
disclosure; it's directed to the very illegitimate government
interest in distinguishing between responsible and irresponsible
journalism.

John Noble

At 11:17 PM -0600 12/1/05, Barksdale, Yvette wrote:
>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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>>are posted; people can read the Web archives; and list members can
>>(rightly or wrongly) forward the messages to others.
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private.  Anyone can subscribe to the list and read messages that are
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