Stuart Levine proposed the idea [*]: have the President require each of his senior aides to make a public statement freeing any reporter to whom they might have revealed the identity of Valerie Plame from any pledge of confidentiality made by that reporter to that official. I expressed doubt [*], as did Eugene Volokh [*](who was reacting to similar suggestions from other sources). It wouldn’t work we said, because an ethically responsible journalist, to say nothing of a journalist who wanted to keep his sources of information flowing, would regard such a coerced waiver as inalid. Neither of us considered how the courts, currently in the process of creating a common-law “reporter’s privilege,” might treat such waivers.
Stuart responds in a long, thoughtful post [*] that draws distinctions among various kinds of leak. Stuart focuses on the policy question: What sorts of leak is it in the public interest to discourage? He properly, in my view, finds that the Plame revelation was such a case, while the case of Deep Throat (or, he might have added, of the “senior Administration official who partially unmasked Valerie Plame’s unmaskers) the public interest requires that the identity of the leaker be protected.
The analysis is acute, but the need of journalists and their sources for a bright-line rule probably means that any such fine distinction could not be made the basis of a robust convention.