No reasonable person believes that a journalist's right to protect their confidential sources is absolute. Yet one is virtually required to act as though it is, and any exception to this right will have a devastating effect on investigative journalism, in order to justify New York Times reporter Judith Miller's non-cooperation with the special prosecutor investigating the Valerie Plame Wilson leak.
That journalists' privilege cannot be absolute is easy to demonstrate: If after obtaining a promise of strict confidentiality, Karl Rove had told Time's Matthew Cooper that he was a serial killer planning to strike again, who would argue that Cooper should not immediately go to the police—let alone defy a subpoena from a grand jury seeking evidence of Rove's crimes?
To argue that such defiance is appropriate when the crime involved is less serious than murder, then, one has to establish that in the particular case at hand, the principle of protecting confidential sources outweighs the public interest in prosecuting lawbreakers. Certainly there are times that it does: The public interest in learning about government wrongdoing is often more important than the government's legal right to protect its secrets.
In those cases, reporters are fully justified in concealing their sources—even in committing civil disobedience to do so. But such a step requires justification: If someone breaks the law by giving information to a journalist, or reveals to a journalist that they have committed a crime, the journalist has to be able to argue that in that specific case, protecting the source's identity serves the public more than bringing the source to trial.
It can't be justified by the claim that one must never break any promise of confidentiality whatsoever, because such an absolutist claim would be absurd. Even the New York Times editorial page, stalwart in its defense of Miller, conceded (7/7/05) that "responsible journalists recognize that press freedoms are not absolute and must be exercised responsibly." But the editorial never explained why, if there are some claims of journalistic privilege that are not justifiable, this case is one of the justifiable ones. Instead it merely suggested that any failure whatsoever to honor a promise of confidentiality would make it "immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places, or a worried worker to reveal corporate crimes"—and asserted that Miller has "acted in the great tradition of civil disobedience" that includes the Underground Railroad, Martin Luther King Jr. and Rosa Parks.
Few if any of Miller's defenders—who include many usually clearsighted pundits and media activists—are willing to argue that her refusal to cooperate with the prosecutor in itself serves the public interest. This is unsurprising, because the prevailing assumption is that Miller is protecting an official who outed Wilson as a CIA operative after Wilson's husband Joseph wrote an op-ed about the Bush administration's WMD deceptions. It's hard to argue that it helps the public when powerful government officials punish whistleblowers by exposing classified information. So to defend her decision to remain silent, her advocates are forced to treat protection of source confidentiality as though it were an absolute principle that journalists can never compromise without terrible results—even though many of these defenders acknowledge that confidentiality cannot be absolute, and nearly all of them would do so if pressed.
Thus Salon (7/13/05), defending its pro-Miller coverage against a slew of angry letters, wrote: "Compelling a reporter to reveal his or her sources to the police turns that reporter into a police agent, and that's not acceptable, even in unsavory circumstances like these.... If journalists can only receive confidential information from the saintly and the pure of heart, the entire enterprise might as well become The View." Salon's Andrew O'Hehir went on to say that "Even if you believe that Judith Miller is nothing more than...'a co-conspirator in a government cover-up,'" as one letter to the online magazine asserted, "she's still entitled to the same constitutional protections as Greg Palast and Amy Goodman."
Really? While obviously the same Constitution applies to everyone, people actively engaged in criminal enterprises (which is what a "co-conspirator" is) generally look more to the 5th Amendment than to the 1st Amendment for protection.
The New York Times' Frank Rich (7/10/05) declared the Plame scandal "worse than Watergate," and his explanation for why this is so began with the fact that because "my colleague Judy Miller has been taken away in shackles for refusing to name the source for a story she never wrote. No reporter went to jail during Watergate. No news organization buckled like Time."
He went on to add, as another and weightier reason, that in contrast with today, "No one instigated a war on phony premises." The comment ignored the fact that President Richard Nixon's administration lied constantly about the incredibly bloody war in Indochina, including the secret bombing of Cambodia, an action that the House Judiciary Committee considered (but did not adopt) as one of its proposed articles of impeachment against Nixon in 1974. But it's telling that Rich attempted to tie together the deceptions used to justify the Iraq War, of which the outing of Valerie Wilson was a part, with the special prosecutor's attempts to discover who exposed her. If Wilson's exposure was part of a crime "worse than Watergate," don't reporters have an ethical (not to mention legal) obligation to cooperate with efforts to find out who is responsible for that crime?
Recognizing the difficulty of justifying Miller's withholding on its own merits, Rich invoked the general principle: "Should a journalist protect a sleazy, possibly even criminal, source? Yes, sometimes, if the public is to get news of wrongdoing." True enough—but Rich made no effort to establish that this is one of those times. That's understandable, given that Miller's choice seems to be keeping news of wrongdoing from the public.
Sydney Schanberg, a New York Times veteran now writing for the Village Voice (7/12/05), called Miller's stance "honorable civil disobedience. In this reporter's view, more such resistance is needed at a time when an increasingly imperial presidency is trying to tar and diminish the notion of a free and independent press." But how is Miller resisting such tarring by refusing to disclose the very hand that holds the tar brush?
Schanberg caricatured the views of those who see no public good served by the protection of Wilson's exposers:
Yes, it is the press's job to report government abuses. Sometimes that means granting anonymity to sources. When those sources are themselves the ones carrying out government abuses—as seems to be the situation in the Wilson case, and, frankly, in much of Miller's reporting (see Extra!, 7-8/05)—then anonymity serves no such purpose.
Wrote Schanberg: "The question the public has to decide is whether or not it wants investigative journalism—serious journalism that exposes corruption in high places." The public not only wants but needs such journalism. But how does protecting an official's potentially illegal retaliation against a whistleblower further the cause of exposing corruption? Why is it not, instead, an instance of the press facilitating corruption and discouraging its exposure?
Robert Kuttner, editor of the American Prospect, has been sharply critical of the special prosecutor's efforts to force Miller to testify. In the July 13 Boston Globe, however, he wrote a soul-searching apology, saying that the line he and others had been taking on the case was profoundly misguided:
It's one thing for reporters to protect a brave whistle-blower who has taken personal risks to serve the public interest. It is another thing for reporters to collude with the powerful to punish the whistle-blower, in this case Joseph Wilson, and his wife, an innocent bystander.
Is the public good served by helping Fitzgerald learn who at the White House broke the law? Or is it served by having reporters protect Karl Rove? We need a public interest test, not an absolute privilege.
Kuttner's willingness to rethink his instinctual reaction to a case that brings up profound emotions for journalists is commendable. It's to be hoped that others putting forth a blanket defense of Miller's refusal to provide testimony will do some similar reevaluation.