Commentary: Whistleblower Protection Act only obstructs justice

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I’m afraid I owe our readers an apology.

While I’ve been turning The Dark Side into a Bohemian poetry review, the state Legislature has passed, and the governor has signed into law, a gross infringement of our clients’ constitutional right to compulsory process.

On May 18, Gov. Doyle signed into law 2009 Assembly Bill 333, authorizing journalists to ride roughshod over citizens’ rights to a fair trial. While you were all busy practicing law, I should have alerted you to what was happening. But I was asleep at the wheel, and I’m sorry.

If you have heard about this law in mainstream media sources, you will have heard it referred to as the Whistleblower Protection Act; the purportedly objective reporter likely claimed that the bill would only protect journalists from identifying the names of confidential sources who report crime or misconduct.

The text of the law, however, contains no such limitation. As is readily apparent from any review of cases in which journalists claim privilege, what the law will do in practice is simply protect the wrongdoers themselves.

The disgracefully biased media will also report that the law protects journalists from the government. Hogwash, again. In practice, it will exempt journalists from testifying when subpoenaed by criminal defendants and private parties in civil cases.

It was once understood by all reasonable persons that there is no constitutional right to conceal the commission of a crime. Unfortunately, in State ex rel. Green Bay Newspaper Co. v. Circuit Court, Branch 1, Brown County, 113 Wis.2d 367, 335 N.W.2d 367 (1983), the Wisconsin Supreme Court created, out of thin air, a qualified privilege to refuse to disclose confidential sources.

Because the U.S. Supreme Court correctly held in Branzburg v. Hayes, 408 U.S. 665 (1972), that the First Amendment does not give journalists privilege to flout legal process, the Wisconsin Supreme Court fashioned the privilege from Art. I, sec. 3 of the Wisconsin Constitution.

But at least the opinion in Green Bay Newspaper Co. acknowledged that the “privilege” must sometimes yield to a criminal defendant’s right to compulsory process. The court found that the information sought was not material to the underlying criminal case. Had it been material, the case would likely have gone the other way.

The statute, in contrast, sets a standard far beyond “materiality.” It requires a party seeking the identity of a confidential informant to show that the identity is “highly relevant” and “necessary” to maintaining the claim.

Some of our readers may disagree with me about whether there exists a constitutional right to journalistic privilege, or whether providing for a privilege by statute violates other constitutional rights.

But even if we disagree on that, I hope all attorneys share my outrage at subsec. (4) of the new statute: “A disclosure to another person or dissemination to the public of news, information, or the identity of a source … by a news person does not constitute a waiver of the protection from compelled disclosure…”

In other words, unlike longstanding privileges, this one is special. A journalist can tell everyone and his uncle who his source is, yet still not be compelled to say it under oath. With this subsection, this “privilege” made up out of thin air is now more sacrosanct than the attorney-client privilege that has been part of our law for centuries.

All I can do now is hope that when this “privilege” is asserted, Wisconsin attorneys vigorously challenge its assertion on constitutional grounds.

There is no doubt in my mind that when journalists assert the new statute as a defense, their biased mainstream colleagues in the media will portray whoever asserts it as a warrior fighting for the First Amendment.

But rest assured, here on The Dark Side, it will be portrayed here for what it is: obstruction of justice.