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Plamegate and reporter’s privilege

I worked as a print journalist in one capacity or another for a decade. As such, I covered politics and “cops and courts” and was a member of Investigative Reporters and Editors. As a lawyer, I established the case law in my state that recognizes a qualified privilege protecting journalists from forced disclosure of confidential sources in civil lawsuits. Thus, even though the uproar about Judith Miller of the NYT going to jail for refusal to disclose a source involves grand jury proceedings, I feel somewhat qualified to opine upon it.

I don’t, however, have to say a lot in my own words. Although many in the media claim this is a journalistic crisis of epic proportions., there are some voices of reason in the wilderness. A column by the Chicago Tribune’s “public editor,” Don Wycliffe analyzed the issue quite well and is worth excerpting at length:

…. The sky is not falling. The American way of life as we’ve known it is not coming to an end. Most important, freedom of the press is not about to disappear from these United States, although it will continue to be, as it almost always is, taken for granted and underappreciated by most of those for whose benefit it exists.Miller, of The New York Times, has gone to jail because she believes that her job as a journalist exempts her from an obligation of citizenship that applies to all but a few other Americans in a few special circumstances: to testify truthfully when called as a witness before a duly constituted federal grand jury.

I happen not to agree with her. I think that even journalists bear that obligation of citizenship, and that if we don’t want to get caught up in situations like hers and Time magazine’s Matt Cooper’s, we need to become far more discriminating about when and to whom we promise anonymity.

More fundamentally, I think we need to become far more realistic about the 1st Amendment, quit talking about it as if it were some ultimate trump card that puts journalists above the law and beyond accountability, and recognize it for what it is: a constitutional tool that belongs to all the people for the protection of the right of all the people to be informed about the working of their government.

Most important, I think we need to rethink our current headlong rush to trade away the 1st Amendment in its fullness for the protection that a federal “shield law” would confer upon some tiny fraction of “the people” who call themselves journalists.

…. Miller is in jail not because she refused to divulge the name of a Deep Throat, who saw the constitutional order of the nation imperiled and so became a confidential source to Bob Woodward and Carl Bernstein in their Watergate reporting.

Miller is in jail because she promised confidentiality to a rat–someone who was trying to get back at a political critic of the current administration by revealing to the world that the critic’s wife was a secret agent of the United States government. In other words, the source chose to play politics by playing with the life of an American spy, not to mention all of her contacts.

We in the news business can argue that the nature of the source shouldn’t matter, that the only thing that matters is that we made a promise and so we’re bound to keep it.

But the fact is that it matters to the American people, who know the difference between a poodle and a polecat and whose reactions to these cases determine whether the sort of exemption that Miller and Cooper tried to claim will be honored. That it has not been in this case is not just a function of the law and the judicial system, but also of the fact that the American people see nothing important at stake for the nation. In other words, they smell a rat.

* * *

Last–for now anyway–we are told that this case will make it harder for reporters to get the information they need to serve the public’s right to know by making sources more reluctant to speak with reporters off the record.

That’s not an argument to sneeze at. The fact is that promises of confidentiality are absolutely essential in many newsgathering situations. But I dare say those situations are far fewer in number than are the number of cases in which promises are made simply as a matter of routine.

Is it absurd to think that a promise of confidentiality may engender even greater trust in the future, precisely because any source will know that it is a deeply considered action, made by a reporter who has reflected on what the cost ultimately may be?

Wycliffe analysis of this tempest is insightful. What is happening here is not threatening to shove the First Amendment over a precipice nor does it undermine or alter well-recognized and established law. TIME Magazine recognized this when it turned over documents following exhaustion of judicial remedies. In doing so, it recognized it was “bad precedent for journalists to think they are above the law.”

Miller is free to engage in civil disobedience and cast herself in the role of a First Amendment heroine. To consider her some sort of martyr, though, is simply wrong. The simple fact is that no one — reporters, ministers, lawyers, presidents — is above the law.


The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection. It would be frivolous to assert . . . that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws.

Branzburg v. Hayes, U.S. Supreme Court, 408 U.S. 665, 692 (1972)

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