вторник, 10 июня 2008 г.

A Working Girl Can't Win

Prostitutes make good money, a new study argues — but not enough to offset the risks the job involves. The economist Steven D. Levitt and the sociologist Sudhir Alladi Venkatesh sent researchers into the streets of Chicago to record how much prostitutes earn and to assess the hazards they face. Analyzing Chicago Police Department data on prostitution arrests, the authors argue that paying for sex in some ways resembles paying for any other service on the open market. Almost half of prostitution-related arrests were made on just 0.3 percent of the 25,000 city blocks surveyed, and prostitution incidents tended to occur along major streets — suggesting that prostitutes, like other retailers, need to display their wares in concentrated and consistent locations where potential consumers congregate. As far as sales are concerned, the setup seems to work: the prostitutes surveyed over a two-year period averaged $27 an hour, or about $300 to $400 a week. Women reporting to a pimp fared even better. Although they had to hand over 25 percent of their earnings, they still made roughly 50 percent more than women without pimps. Compared with the wages these women could earn in retail sales, hairstyling, or babysitting (from $67 to $145 per week), prostitution looks like a much better deal. But the authors suggest that the dangers of the job outweigh the financial incentives. Not only did prostitutes engage in sexual acts without a condom 75 percent of the time, they also were the victims of abuse by clients or pimps once a month on average.

Biegel goes legal, says he's no dirty dog

On Steve Biegel's personal website, among the usual intellectual bricabrac of a midcareer creative-print and TV ads, a bio, a manifesto of sorts-you will find this schmaltzy bit of philosophizing: "First, we start as a little sediment sitting all by yourself. Then, one day, by the sheer force of nature, we are stuck to another individual for a period of time. … We become defined today, by who we were with, and where we were."

Strange that a meditation sparked by his 8-year-old son's geology homework now, in light of Mr. Biegel's explosive legal action that ascribes graphic sexual proclivities to a former employer, seems downright prescient.

The 45-year-old creative director, an ad veteran who's passed through a bunch of big New York ad agencies, receiving little outside recognition along the way, now finds himself "defined" by a series of utterly bizarre, erotically charged experiences he alleges he had in the company of Toyo Shigeta, who as chief executive of Dentsu Holdings runs the U.S. and Canadian operations of one of the adworld's biggest players. Mr. Biegel, who worked for Dentsu for three years, is alleging Mr. Shigeta subjected him to several experiences, all recounted in skin-crawling detail in a 21-page lawsuit filed in federal court. (The lawsuit can be downloaded at AdAge.com.) 'OUTRAGEOUS ALLEGATIONS'

Mr. Biegel claims his resistance to things such as going to a brothel with Mr. Shigeta led to his firing late last year, according to the papers. In shocking detail, those papers paint the Dentsu bigwig as nothing less than a hyper-libidinous rogue who demanded his subordinates take as much pleasure in lewd talk about outre sex acts, frolicking with prostitutes and photographing the crotches of women as he did.

The scandal has already rocked Dentsu, an Asian powerhouse that's had trouble snapping out of torpor in the U.S. Fresh off the acquisition of digital shop Attik, it's been trying to ramp up its growth efforts here and doesn't need this PR black eye. What's more, the scandal is sure to only deepen.

Dentsu dismissed Mr. Biegel's claims in a statement Oct. 31: "When Dentsu refused to yield to Mr. Biegel's unreasonable demands, he made outrageous allegations, which the company has refuted. He has now filed a claim to obtain money to which he is not entitled, for incidents he alleges took place over three years ago and which he never complained about while an employee of Dentsu."

Dentsu is all but certain to fire back at Mr. Biegel with its own lawsuit alleging that the former employee defamed the company when he informed a few Dentsu clients of his impending legal action. Such legal back-and-forth could get very icky very fast, and Mr. Biegel's lawyer, Andy Dwyer, said he's certain any countersuit would be merely about discrediting his client.

"It would just be about a desire to get back at Steve," he said.

A countersuit's impact on Mr. Biegel, regardless of its legal merits, will be another story, since it's clear this is not a battle of equals-or even near-equals. Consider this analogue from recent history: Julie Roehm's legal action against Wal-Mart ran out of steam when the retailer came back with a blistering attack of its own, packing all kinds of personal shrapnel into a legal bombshell and dropping it into her lap. When it exploded, even a larger-than-life, media-honed persona provided virtually no cover. Mr. Biegel, on the other hand, is little known outside the creative circles in which he ran at agencies such as Kirshenbaum Bond & Partners, Ogilvy & Mather and Ammirati & Puris (now part of Lowe), where he started his career as the agency's first junior copywriter back in 1988.

In the years since then, Mr. Biegel toiled as a "middle-of-the-road" creative and a "bit of a workhorse, someone who just got the job done," as one former colleague put it. His profile on the social network LinkedIn boasts more-positive appraisals. In one, a former Ogilvy colleague named Jerouen Bours lauds Mr. Biegel as "the consummate writer in his field" and a "deep and thorough and sincere thinker."

That same profile page lists as his honors as an Effie, a Clio and a David Ogilvy Award. But as "biggest honor" he lists his duty as "coach of the Long Island Flag Football Rookie Division champions," noting parenthetically, "What's more rewarding than getting a ramshackle bunch of 8-year-old boys running in the same direction?" Mr. Biegel, a father of two, is married, according to the lawsuit, and lives in Woodbury, a town on New York's Long Island.

Since his outster from Dentsu, Mr. Biegel has been marketing himself as a freelancer, though it's unclear for what client, and earned a co-writing and production credit on a film about baseball made by his brother.

Whether Mr. Biegel will have the stomach for a protracted legal battle remains to be seen. In an e-mail to Ad Age sent after the story broke last Wednesday night, he acknowledged the David-and-Goliath situation in a plea to hear his side of the story. "Remember," he wrote, "I am challenging the largest entity in advertising. They have deep pockets and conference rooms full of lawyers, PR people and spinmeisters."

Since then, he has generally deferred to his attorney, Mr. Dwyer, an employment-law specialist who has tangled with corporate giants such as Tropicana in these kinds of disputes. But the cause's greatest medium is the 21-page lawsuit that puts the seedy, lascivious adventures of a powerful, globe-trotting ad executive in grand narrative form for all to see. At its center is a blow-by-blow description of a June 2004 evening when Mr. Biegel says he unwittingly found himself at Escade Caberet, a brothel in Prague. According to the lawsuit, Mr. Shigeta ordered him and another employee to an undisclosed location that turned out to be a house of prostitution. CROTCH SHOTS

Mr. Shigeta, the lawsuit says, encouraged his subordinates to pair up with prostitutes. When they resisted, he ordered them. "You-him, you-him," he said, matching each ad executive to one of Escade's ladies. Mr. Biegel and the woman assigned to him by Mr. Shigeta then repaired to one of brothel's private rooms where nothing happened, the suit says. He waited for a bit and then left.

The Escade episode wasn't the only time Mr. Shigeta displayed a lusty side, according to the lawsuit. "Apparently," it reads, "taking close-up crotch shots of women is a personal obsession of defendant Shigeta." As evidence, Mr. Biegel points to an October 2006 Canon commercial shoot, also in Prague, where he maintains Mr. Shigeta used a telephoto lens to capture spokeswoman Maria Sharapova's exposed panties as the tennis star draped her legs over the back of chair in a moment of repose. That photo, which was passed around digitally, is now attached to the lawsuit.

At other times, there was candid talk about sexual behavior being part of Japanese business traditions, as when Mr. Shigeta purportedly told Mr. Biegel that a customary way to seal a deal between two parties is for both to have sex simultaneously with the same woman. Where such an act is known-and that's mainly in pornographic circles-it's known as "double penetration," something Mr. Shigeta claimed to have done once in Mexico, per the lawsuit.

Mr. Biegel claims that, as a married father, this activity offended him and that, shortly after he complained about it to a supervisor, Mr. Shigeta's behavior turned chilly. Eventually Mr. Biegel and the supervisor were fired. There's also a side accusation that he was out of favor because he's Jewish, a claim that's skimpily supported by the fact adduced in the complaint that his replacement in the job was not Jewish.

Dentsu last week offered a contrasting version of Mr. Biegel's dismissal, saying it had nothing to do with any complaints he intended to lodge against Mr. Shigeta but was instead part of a management overhaul that saw Mr. Shigeta promoted to his current role. "The leadership at Dentsu was not thrilled with the work they were doing," a spokesman for the agency said.

Mr. Dwyer counters that his client's shortcomings were never spelled out to him and, upon his dismissal, he was informed the agency was moving in "a new direction."

Mr. Biegel himself is, rather quixotically, attempting to avoid any further attention. Citing fear of Dentsu backlash, he's declined interview requests. Late Friday afternoon, he responded to an emailed list of questions that Mr. Dwyer would handle all inquiries, explaining in one brief sentence: "This is difficult."

Spitzer Linked to Prostitution

Eliot Spitzer's political career teetered on the brink of collapse after the corruption-fighting politician once known as "Mr. Clean" was accused of paying for a four-hour romp with a high-priced call girl.

The scandal drew immediate calls for the Democrat to step down. At a March 10 news conference before about 100 reporters, a glassy-eyed Spitzer, his shell-shocked wife at his side, apologized to his family and the people of New York.

"I have disappointed and failed to live up to the standard I expected of myself," said the 48-year-old father of three teenage girls. "I must now dedicate some time to regain the trust of my family."

He did not discuss his political future and ignored shouted questions about whether he would resign. And he gave no details of what he was apologizing for.

Spitzer was caught on a federal wiretap arranging to meet in a Washington hotel room the night before Valentine's Day with a prostitute from a call-girl business known as the Emperors Club VIP, according to a law enforcement official who spoke to The Associated Press on condition of anonymity because the investigation is still going on.

The governor has not been charged, and prosecutors would not comment on the case.

But an affidavit based on the wiretap told of a man identified as "Client 9" -- Spitzer, according to the law enforcement official -- paying $4,300 in cash, some of it credit for future trysts, some of it for sex with a "petite, pretty brunette, 5-feet-5 inches, and 105 pounds," named Kristen.

The scandal came 16 months after Spitzer stormed into the governor's office with a historic margin of victory, vowing to root out corruption in New York government in the same way that he took on Wall Street executives with a vengeance while state attorney general.

But his first year in office was marred by turmoil, and the latest scandal raised questions about whether he would make it through a second year.

"He has to step down. No one will stand with him," said Rep. Peter King, a Republican congressman from Long Island. "I never try to take advantage or gloat over a personal tragedy. However, this is different. This is a guy who is so self-righteous, and so unforgiving."

Democratic Assemblyman John McEneny said: "I don't think anyone remembers anything like this. The fact that the governor has a reputation as a reformer and there is a certain assumption as attorney general that you're Caesar's wife. It's a different element than if you were an accountant."

Democratic Lt. Gov. David Paterson would become New York's first black governor if Spitzer were to resign.

The allegations were outlined in papers filed in federal court in New York.

A defendant in the case, Temeka Rachelle Lewis, told a prostitute identified only as Kristen that she should take a train from New York to Washington for an encounter with Client 9 on the night of Feb. 13, according to a complaint. The defendant confirmed that the client would be "paying for everything -- train tickets, cab fare from the hotel and back, mini bar or room service, travel time, and hotel."

The prostitute met the client in Room 871 at about 10 p.m., according to the complaint. When discussing how the payments would be arranged, Client 9 told Lewis: "Yup, same as in the past, no question about it" -- suggesting Client 9 had done this before.

According to court papers, an Emperor's Club agent was told by the prostitute that her evening with Client 9 went well. The agent said she had been told that the client "would ask you to do things that you might not think were safe very basic things," according to the papers, but Kristen responded by saying: "I have a way of dealing with that I'd be, like, listen dude, you really want the sex?"

The prostitution ring arranged sex between wealthy men and more than 50 prostitutes in New York, Washington, Los Angeles, Miami, London and Paris, prosecutors said. Four people allegedly connected to the high-end ring were arrested last week.

The club's Web site displays photographs of scantily clad women with their faces hidden. It also shows hourly rates depending on whether the prostitutes were rated from one diamond to seven diamonds. The highest-ranked prostitutes cost $5,500 an hour, prosecutors said.

The four defendants charged in the case last week were charged with violating the federal Mann Act, a 1910 law that outlaws traveling across state lines for prostitution.

"I have acted in a way that violates my obligations to my family and violates my, or any, sense of right and wrong," Spitzer said at the news conference. "I apologize first and most importantly to my family. I apologize to the public, whom I promised better."

The scandal was bad news not only for Spitzer but for the entire Democratic party in New York. Spitzer went into 2008 intent on taking back the state Senate from the Republicans.

"Today's news that Eliot Spitzer was likely involved with a prostitution ring and his refusal to deny it leads to one inescapable conclusion: He has disgraced his office and the entire state of New York," said Assembly Republican leader James Tedisco. "He should resign his office immediately."

Spitzer clashed with Wall Street executives throughout his two terms as attorney general, launching several prosecutions that rocked major companies earlier this decade. Among other things, he uncovered crooked practices and self-dealing in the stock brokerage and insurance industries and in corporate boardrooms, and went after former New York Stock Exchange chairman Richard Grasso over his $187.5 million compensation package, which Spitzer called unreasonable and unlawful.

He became known as the "Sheriff of Wall Street." Time magazine named him "Crusader of the Year," and the tabloids proclaimed him "Eliot Ness." The square-jawed graduate of Princeton University and Harvard Law was sometimes mentioned as a potential candidate for president.

But his term as governor has been fraught with problems, including an unpopular plan to grant driver's licenses to illegal immigrants and a plot by his aides to smear his main Republican nemesis.

Spitzer had been expected to testify to a state commission he had created to answer for his role in the scandal, in which his aides were accused of using the state police to compile travel records to embarrass Senate GOP leader Joseph Bruno.

His cases as attorney general included a few criminal prosecutions of prostitution rings and tourism involving prostitutes. In 2004, he took part in an investigation of an escort service in New York City that resulted in the arrest of 18 people on charges of promoting prostitution and related charges.

On Wives and Prostitutes

"Wives and whores are — if not exactly like Coke and Pepsi — something akin to champagne and beer. The same sort of thing." This latest expression of that naughtily provocative idea comes from a recent online edition of the business magazine Forbes, summarizing an article published by two female economists in a leading professional journal. Economists, of course, have a bias toward analyzing activities of all kinds as though they were just business deals: wives exchange sex for room, board, and other goodies.

There is, of course, a diametrically opposed view of what goes on within a married household, namely that everything done there — sex, housework, caregiving, the planning and funding of the family budget — is done for love alone. The household and the business world are strictly "separate spheres." Exchange, payment, and the cold rationality that dominates the business world should have no place in the household.

The Purchase of Intimacy, by Viviana A. Zelizer, a sociology professor at Princeton, maintains that neither of these views describes the situation correctly. Zelizer points out that household relations do inevitably involve economic transactions, so the "separate spheres" view is an incomplete account of what goes on there. Housewives don't ordinarily think of having sex with their husbands or performing housework as activities that they are paid for with access to their husbands' paychecks. But they certainly know that were the sex and housework to cease the household would most likely break up, and access to that money would also cease. There is, therefore, a sense in which an exchange is going on of sexual access and housework for money, or for what money buys.

Yet the view that intimate relations within a household are "nothing but" economic exchanges is not correct either. Marriage is in truth very different from prostitution, because it is a long-term relationship, because love or at least affection are frequently involved, because children are often being raised, and because the law says so. What goes on in a marriage is not well-described by the kind of analysis economists use when they attempt to explain behavior in the money economy. The claim by some economists that it can be described that way is merely an example of their foolishly imperialistic attitude toward the other social and behavioral sciences.

The nature of the economic exchanges in relations involving sex are usually kept inexplicit, which encourages a false "separate spheres" view. One reason for avoiding explicit acknowledgment of exchanges is precisely to shield the relationship from the deadly stigma of prostitution. Zelizer shows this in her discussion of relations between unmarried couples. At the beginning of the twentieth century, working-class young women earned very low wages and had to contribute to their families' incomes. They had nothing left over for clothes or entertainment, and could get these things only as "treats" from boyfriends. Sexual relations were fairly free among these couples. But they took great care to make sure that the "treats" were not in cash, and were timed so as not to appear to be a reward for a particular sexual act. These couples were thus distinguishing between their kind of relationship and the one a prostitute might have with a repeat client. Zelizer makes the general point that people in intimate relationships use the name given to the relationship, and the type and timing of payments, to distinguish their exchange transactions from other, inappropriate ones.

While some money-dealings among people in intimate relationships are necessary and therefore inevitable, some are best avoided. Doing business with a family member or a close friend carries the risk of souring a valuable relationship if the business does not go smoothly. As Shakespeare says, "[L]oan oft loses both itself and friend." Also best avoided is the intrusion of intimacy into certain business or professional relationships. Sex with your psychiatrist, gynecologist, divorce lawyer, or thesis adviser is generally not a good idea. Sexual liaisons with colleagues in the workplace may confer unfair advantage in the competition for advancement and create resentment — "She slept her way to the top." A workplace where sexual relations are common is fertile ground for sexual harassment.

Zelizer seems friendly to the contention that money wages ought to be paid for a wife's housework, remarking, "Feminists may well be right to claim that equal pay for housework and outside wage work would benefit women as much as equal wages within commercial firms would." Yet Zelizer of all people should understand that the housewife, while without a formal wage, is not without recompense. The Wages for Housework campaign is not endorsed by all who profess to be feminists and, in truth, makes little sense. The housewife's money wage would have to come from the husband or from the taxpayers. If it came from the husband, the money would have to finance pretty much the same purchases as it does in the absence of the wage. So it would have no economic effect on the wife's situation. If it came from the taxpayers, then single people and two-earner couples would be subsidizing the living standard of housewife-maintaining couples. Since the advance in women's status over the last fifty years has resulted mainly from the decline in the number of housewives, this is hardly a policy feminists should endorse. Equal pay in the workplace, on the other hand, is a vital goal still far from realization.

Many of the examples Zelizer gives of the way exchanges among intimates are interpreted are based on lawsuits, which occur when couples or households break up or change composition. When an engagement is broken, a court may be asked to decide who gets the diamond ring. Typically, the judge awards it to the man, even if it was he who broke off the engagement. The ring is viewed as a "conditional" gift, which can be revoked by the giver if the condition of the gift, namely the marriage, fails to take place.

Someone who has given an elderly person years of care may be left out of the latter's will, which has been redrawn to benefit some third person, perhaps newly arrived on the scene. Then a court may be asked to decide how much, if anything, should be awarded to the caregiver. If the caregiver was a family member, he or she is likely to get nothing, with the judge following a "separate spheres" theory that pay for caring labor within the family is inappropriate. But a non-family member is likely to get an award in such a case. Zelizer remarks that the theories used by judges in deciding such cases tend to lag behind social changes and may also have an anti-female bias.

One result of the "separate spheres" way of thinking, which is extremely harmful to the cause of women's equality, is the widespread belief that it is a bad thing to buy from strangers services a family member could do. It is taken for granted that the quality of purchased child care and elder care cannot be as good as that provided by family members, almost invariably female. If the quality is in fact lower, that may be the result of the bottom-tier pay the market sets for the people delivering this kind of care. The low pay offered may derive from the belief that anybody can do such work well enough. After all, any woman in the world is assumed to be qualified to provide good care for her child or parent.

Many economic transactions within households and between couples in the past were occasioned by the fact that most women had little or no direct access to money. Now that most unmarried women and a high proportion of wives hold jobs, and women's wages have risen relative to men's, there is less need for men to pass money or goods to women. Perhaps as a result, the big share of the housework still done by job-holding wives is increasingly felt to be unjust. The custom of males "treating" their girlfriends is still with us, but appears to be waning. The sexual revolution, which to some extent removed the stigma from sex for unmarried women, has increased the supply of sex available to men, and thus presumably lowered the "payment" needed to obtain it. One of those payments was the promise of marriage, and the decline in marriage that we have been witnessing may well be the result.

The book does not say what further exploration might be undertaken in these matters, and what, if any, policy changes ought to result from its insights. Except for the anecdotes, it is not an easy or pleasurable read. But The Purchase of Intimacy explores a sexy and interesting topic, and it is good to have these economic exchanges between couples brought to our attention.

"Housewives don't ordinarily think of having sex with their husbands or performing housework as activities that they are paid for with access to their husbands' paychecks. But they certainly know that were the sex and housework to cease the household would most likely break up, and access to that money would also cease."

среда, 4 июня 2008 г.

Jeux sans frontieres

I am no Francophobe, but when French law stories surface the attachment remains unopened. Nonetheless, with Paris now the capital of world rugby, it seemed the right time to find out what Parisian lawyers actually do (apart, obviously, from long lunches and liaisons dangereuses).

So I started with a little probing at Gide Loyrette Nouel and, I must admit, I got a bit of a shock. Suddenly a different, more exotic world opened out. I found myself in North Africa, where Gide seems to have cornered the markets from its offices in Algiers, Tunis and, above all, Casablanca. I imagined myself in the kasbah with Bogart. Then I was whisked away to Gide's meeting with BNP Paribas regarding the privatisation of Sahara Bank (apparently the first bank privatisation in Libya).

Yes, the frontiers are coming down. No wonder an Italian with a law degree from Scotland is opening in London to sell Spanish houses to rich Russians.

New drug law shutters Market Square barbershop

May 25--Some patrons of a Market Square barbershop went in for more than just a shave and a haircut, authorities say.

Allegheny County sheriff's deputies on Thursday padlocked the Success barbershop, which prosecutors claim was a drug nuisance.

The District Attorney's Office argued that more than 120 arrests for drug violations have occurred in and around Market Square and the shop. Common Pleas Judge Robert P. Horgos signed a preliminary injunction yesterday to close the business. A hearing to keep it closed is scheduled for Wednesday before Horgos.

District Attorney Stephen A. Zappala Jr. said the closure was the first in Allegheny County under the Drug Nuisance Law.

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Local leaders are trying to clean up Market Square and redevelop it as a Downtown hub. In January, Zappala's office used nuisance bar laws to force the closing of Mick McGuire's bar in Market Square over allegations of drug dealing in the bar.

"We've successfully closed the second drug-trafficking business in Market Square," Mayor Luke Ravenstahl said in a statement. "We've let criminals know that we are committed to the health of Pittsburgh's 89th neighborhood, Downtown."

According to prosecutors, the owners of Success, their employees and patrons are responsible for criminal violence, possession and drug trafficking of narcotics inside and around the barber shop.

Charles Fowlks, one of the shop owners, denied drug dealing had occurred there.

"They know I don't sell anything here," said Fowlks, 34. "Since the barbershop is black, and they're trying to re-do Market Square, they want us out."

In the complaint presented to Horgos, prosecutors said an informant bought marijuana from Fowlks inside the barbershop.

Police searched the shop May 14 and recovered 12 knotted plastic bags of crack cocaine and packaging material used for the sale of drugs, according to the complaint.

Fowlks was charged after the raid with possession of crack cocaine, drug paraphernalia and possession with intent to deliver, according to the complaint presented to Horgos yesterday.

"They came in and said they found crack cocaine. They didn't say where," Fowlks said. "A lot of people come in here."

Varick Benson, 35, of Point Breeze, who works at the business as a barber, said police burst into the shop last week when he was cutting hair and claimed they found drugs.

"I need this job to pay my bills," Benson said.

After the raid, police charged Benson with five charges of possession and possession with intent to deliver marijuana and cocaine, and possession of drug paraphernalia. Police said they found $1,298, a large bag of marijuana and a cell phone in his barber chair.

Newscraft nonsense

The federal newsmen's privilege statute pending before the Senate Judiciary Committee the Free Flow of Information Act of 2006 (FFIA) is nonsense on stilts.

In Branzburg v. Hayes (1972), the U.S. Supreme Court denied that the First Amendment crowned the press with a right to withhold confidential sources from grand juries. Writing for the majority, Justice Byron White doubted the press would be hobbled in its organized scrutiny or criticism of government if promises of confidentiality occasionally bowed to criminal justice. Time has vindicated White's skepticism.

Investigative journalism has flourished during the 34 years that have elapsed since Branzburg with no federal newsmen's privilege law. Stories exposing Watergate, Lancegate; Iran-Contra, the Anita Hill affidavit, Monicagate, warrantless domestic surveillance and data mining; and, secret CIA prisons and interrogation centers abroad are emblematic. In other words, ironclad promises of confidentiality are not the lifeblood of a free press.

Judith Miller, a New York Times reporter, spent months in jail for refusing to disclose sources of her knowledge that Valerie Plame was a CIA operative in the criminal investigation of Scooter Libby. Several other reporters have been ordered to reveal confidential sources in Wen Ho Lee's Privacy Act suit against federal officials. Yet neither precedent has occasioned a dwindling of confidential sources. Media stories pivoting on leaked confidential or sensitive information remain common.

It might be said a chilling effect on news reporting is self-evident if there is any possibility confidentiality will be broken. Sources would not seek confidentiality unless it was a material factor in their willingness to talk. But the syllogism is unpersuasive. In any given case, the probability a confidential source will be disclosed is microscopic. Government officials shy from coercion against the media to cultivate good will and avoid antagonism. The prospect of media retaliation with a disparaging Page One story or editorial concentrates their minds wonderfully.

Neither Carl Bernstein nor Robert Woodward was summoned to reveal the identity of "Deep Throat," i.e., Mark Felt. Neither Nina Tottenberg nor Timothy Phelps was ordered to disclose the congressional source for the Anita Hill affidavit. The New York Times reporters who disclosed President Bush's secret domestic surveillance program in contravention of the Foreign Intelligence Surveillance Act have not been compelled to reveal their sources. Neither has The Washington Post's reporter who wrote about the CIA's secret prisons or interrogation centers abroad.

Sources are also generally driven to confide in the press for reasons that outweigh the possible embarrassment of disclosure. Take Scooter Libby's conversations with Judith Miller about Mrs. Plame and Iraq's suspected weapons of mass destruction. As Vice President Richard Cheney's chief of staff, his ambition to destroy the credibility of Mrs. Plame's husband, Ambassador Joseph Wilson, easily trumped worries that his identity would be revealed. Indeed, Mr. Libby ultimately agreed to release Miss Miller from honoring any promise or understanding of confidentiality. Presidential adviser Karl Rove similarly waived any putative right to confidentiality with the reporters with whom he spoke about Mrs. Plame.

If a newsmen's privilege threatened no harm, enacting FFIA would be innocuous. But as the proposed legislation acknowledges, every invocation of the privilege shortchanges the administration of criminal or civil justice. It denies relevant information to grand juries empowered to determine whether a crime has been committed, to petit juries deciding on guilt or innocence, and to civil juries deciding on defamation or invasion of privacy claims. The FFIA seeks to mitigate newsmen's privilege injustices with exceptions. But they are unworkable.

In criminal investigations or prosecutions, for instance, to overcome the privilege the government or the defendant must prove by clear and convincing evidence, among other things, that the information sought is "critical to the investigation or prosecution [or defense], particularly with respect to directly establishing guilt or innocence."

But what is persuasive to one juror is commonly trivial in the eyes of another. A prosecutor thus seeks to assemble the widest range of relevant and reliable evidence to convince all jurors beyond a reasonable doubt of the guilt of the accused. A defendant, on the other hand, values all relevant evidence that might undermine the prosecution's case in the mind of any juror. Indeed, FFIA is probably unconstitutional to the extent it denies the accused exculpatory evidence protected by newsmen's privilege.

Moreover, criticality pivots on what other evidence has been adduced. It could never be sensibly decided until both the prosecution and defense have ended their presentations. And even then, there would be no intellectually coherent standard for a judge to determine if the information sought satisfies FFIA's criticality benchmark for any juror other than the standard of relevance applicable to all evidence.

FFIA would slow justice from lead-footed to glacial with no concession to the shortness of life. Every invocation of newsmen's privilege in a criminal prosecution would engender sprawling auxiliary litigation a literal trial within a trial over whether alternative sources of the information sought had been exhausted; whether the information was peripheral, nonessential or would entail a large volume of unpublished material; whether the purpose of the information was to verify published information or its accuracy; and, whether the importance to society of convicting the defendant of the crime charged should defeat an assumed chilling effect on news reporting from exposing a confidential source.

In sum, a federal newsmen's privilege statute would be wrongheaded. Instead, the media should be directing its energies to confining the Espionage Act of 1917 to classified information that directly, immediately, and irreparably damages the national security of the United States. But that is next week's column.