In this instance, I disagree with Lewis. When the U.S. Supreme Court accepted the Hill case for review, I was working for the American Civil Liberties Union and I recall our intense debates about the case. We were committed to the right to privacy, and we thought Life had been sensationalist and irresponsible. Yet, despite the opinion of the psychiatrists who examined Mrs. Hill, it is impossible to know whether and to what degree the Life article contributed to her breakdown. Moreover, even if the article was a factor, it seems inappropriate to determine what may be published on the basis of its impact on someone so vulnerable. Both the opening of the play and the episode that involved the Hills were newsworthy events. Connecting them was reasonable, even if Life was grossly negligent in making it seem that the play was true to life. If such negligence were subject to punishment, the impact on what may be published would be substantial. The First Amendment protects not only the thought that we hate but also, to use Lewis’s own term, the “rancid journalism” that we despise. Thus, it should take precedence when it comes into conflict with a right—such as the prohibition of “false light” invasions of privacy—that lacks comparable constitutional status.
Lewis makes clear his lack of enthusiasm for special privileges for the press in discussing confidentiality of sources. He espouses the approach suggested by Judge David Tatel of the United States Court of Appeals for the District of Columbia Circuit in the 2005 contempt proceedings against Judith Miller of The New York Times and Matt Cooper of Time magazine. (Each was held in contempt for failing to disclose their sources for information they obtained about Valerie Plame Wilson, the CIA operative whose husband, Joseph Wilson, the former ambassador, crossed swords with the Bush administration.) As Lewis notes, Tatel is a highly regarded judge with a strong concern for the First Amendment. Yet he was not ready to exempt those two journalists from the duty to identify their sources. Instead, the judge proposed that the courts adopt a qualified privilege in which the harm caused by information disclosed by a source would be balanced against the value of the information that is disclosed.
Although I also favor a qualified privilege, I would strike a slightly different balance. In my view, it should be possible for journalists not to disclose the identity of sources who seek anonymity as whistleblowers in revealing misconduct by government or by nongovernmental institutions. This would be in keeping with other efforts that have been made in legislation to protect whistleblowers because of the important public service they perform. On the other hand, when high officials use the press to circulate what they think is damaging information about private citizens or lower-ranking officials who have broken ranks, the source could not be concealed. Neither Judge Tatel’s formula nor the variation I favor embeds a privilege in the First Amendment. As Lewis makes clear, the First Amendment provides no basis to determine who is a journalist—a difficulty that is greater than ever in the era of the blogosphere—and, therefore, who might be entitled to protect the confidentiality of a source.
These issues, though serious, are not about the very essence of free speech. Lewis concludes the introduction to Freedom for the Thought That We Hate by writing that “I am convinced that the fundamental American commitment to free speech, disturbing speech, is no longer in doubt.” His book makes clear that this commitment to free speech is so strong because the words of the First Amendment have acquired force under stress. Some of the losing battles for free speech of the 1920s were as important as the great victories in later decades because the dissents of Holmes and Brandeis are imprinted on the American consciousness.