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Tuesday, May 31, 2005

Strange Justice

Posted by on May 31 at 13:53 PM

Two weeks ago, Michael Miner at the Chicago Reader announced the paper’s decision not to join in an amicus brief on behalf of Judith Miller and Matthew Cooper, the two reporters who are threatened with jail time for refusing to tell a federal jury who in the federal government told them the identity of CIA operative Valeria Plame. In his column, Miner pointed out that while it may be true that “a person’s principles, like his or her home, must always be defended,” the facts of the Miller/Cooper case, and its judicial history so far, make it a poor case for testing a claim of absolute journalistic privilege in front of the Supreme Court.

I agree with Miner: The Plame case isn’t the best case to demonstrate a claim for journalistic privilege, especially in a high-stakes forum like the Supreme Court. Ideally, a Supreme Court case on confidentiality would involve a journalist protecting a government whistleblower who provided information about a wrongdoing, in which that information served the public interest. This case doesn’t meet that standard.

What I don’t agree with is the idea that journalists’ privilege only exists when the people they’re shielding are good people.

If confidentiality is a First-Amendment right (and that's what Miller and Cooper are arguing) it isn't contingent on WHY a journalist agrees to keep a source confidential. I can't agree with the argument (pushed by some of my colleagues) that only "good" sources (government whistleblowers) should be guaranteed confidentiality, while "bad" sources (government lawbreakers) should not. The reason courts have upheld journalistic privilege is that without a guarantee of confidentiality, sources would be deterred from providing information to reporters. Forcing reporters to give up their sources, even under limited circumstances (i.e. when their sources are bad guys), would set precedent and have a chilling effect on confidentiality overall.

More importantly: It isn't Miller and Cooper who are culpable here. (Nor is it conservative columnist Robert Novak, though - as has been widely pointed out - it was he, not Miller or Cooper, who actually outed Plame. That he did so in a column that served the Bush administration's interests, and has not, to anyone's knowledge, been pursued by investigators is telling, but .) Miller protecting their sources, which most journalists consider, at the very least, an obligation of their jobs. (My guarantee of confidentiality to you isn't worth very much if I just sold out my last source to the police. Nor is any journalist's, if journalists can be compelled to tattle on their sources.) The culpable ones are the Bush Administration officials who ratted Plame out. As Hendrick Hertzberg wrote in the New Yorker a couple of weeks ago:

Cooper and Miller are not targets of the investigation. But they may yet be forced to a choice between breaking their promise and going to jail; and it is a near-certainty that, as a matter of personal and professional honor, they would choose the latter. There is, then, a strong possibility that (a) a serious abuse of power, possibly a crime, will have been committed by one or more White House officials, and (b), in consequence, two journalists will have been imprisoned. That would be a strange kind of justice, and a singularly grim parody of accountability.
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