If a rule is only as good as its exceptions, and a reporter is only as good as her sources, then, according to a recent Supreme Court of Pennsylvania opinion, Pennsylvania's reporter's privilege is the best of privileges and the worst of privileges. In that opinion, the justices failed to carve a crime-fraud exception out of Pennsylvania's reporter's privilege - its "Shield Law" - despite having previously read a similar exception into every other evidentiary privilege. Ironically, this alleged act of judicial passivism transformed the Shield Law into both a shield and a sword and mischaracterized the purposes served by the attorney-client privilege and all other evidentiary privileges. According to the court, the Shield Law is exceptional, and thus exceptionless, because it is directed toward the public end of protecting the free flow of information to society while the attorney-client privilege, like all professional privileges, is intended for the private benefit of the client. This essay argues, however, that as the United States Supreme Court recognized in Jaffee v. Redmond, all evidentiary privileges must serve two masters, private interests and public ends, and crime-fraud exceptions do not undercut those public ends but bolster them.
Colin Miller, A Public Privilege, 118 Yale L.J. Pocket Part 166 (2009), http://thepocketpart.org/2009/03/04/miller.html.