Editore"s Note
Tilting at Windmills

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July 6, 2005
By: Kevin Drum

SHIELDING REPORTERS....With Matt Cooper now agreeing to testify in the Valerie Plame case and Judith Miller now heading off the jail, I guess today is the day to finally answer Mark Kleiman's question: assuming arguendo that Karl Rove outed Valerie Plame, that Rove lied about it to the grand jury, and that Cooper's testimony is the only way to prove it, do I still think there ought to be a reporter-source privilege that protects Cooper from having to testify?

Sigh. Talk about a crappy test case for my belief that a reporter-source privilege is something worth supporting. In addition, my thoughts on this are so hopelessly jumbled now that I'm not even sure what to think anymore. With that caveat, here's a brain dump of reactions to today's events in no particular order of importance:

  • Matt Cooper looked like a broken man on TV. I don't know if this was because of his close call with a jail cell or because he feels like he's betrayed his own beliefs or what, but it was a hard thing to watch.

  • Regardless of that, it's worth reiterating the basic justification for a reporter-source privilege. The only reason for any kind of privilege is because there's some kind of principled reason for thinking that the value of the privileged communication in question outweighs the value of prosecuting criminal activity. That's a judgment we've made in the case of lawyers, doctors, and priests, and I'd argue that it's at least equally justified in the case of reporters.

    Why? Because the press plays a unique role in investigating government corruption and malfeasance. In practice, this role largely stands or falls on the ability of reporters to guarantee anonymity to sources who are afraid of retaliation and in a democracy I think that the value of the media's ability to ferret out the truth far outweighs the government's interest in keeping secrets. I don't want to do anything to jeopardize that.

  • It's also worth noting that the reporter-source privilege has a long tradition: most states already have shield laws that provide at least some level of privilege. California has had a shield law on the books since 1935, and it's been part of the state constitution since 1980.

  • That said, I'm not arguing that Judge Hogan did the wrong thing in finding Cooper and Miller in contempt. The fact is, we don't have a federal shield law at the moment, which means there was no legal basis to acknowledge a privilege for either Cooper or Miller. At the same time, as in any other case of conscience or civil disobedience, Cooper and Miller had every right to choose jail time over testifying. There's a long and honorable tradition for this kind of protest.

  • However, while it's one thing for a person to make this kind of decision, it's quite another for a corporation with a duty to its shareholders to follow suit. Thus, it's arguable that Time Inc. did the right thing in turning over Cooper's notes to the prosecutor. Unfortunately, it's also pretty obvious what the result of this is going to be: reporters will no longer reveal their sources to their editors. I'm not sure this does anyone any good.

  • It's important to set personalities aside. The facts of the case are important, but the fact that you like or hate Judith Miller isn't. Ditto for Karl Rove. There's almost nothing on the planet that would make me happier than Rove in handcuffs, but that's irrelevent to the principle at stake here.

    In the end, I don't know if Cooper's testimony will ultimately help make a case against Rove or anyone else. However, it should be obvious to everyone that whistleblowing has already taken a hit. This has been a very high profile case, and I imagine that a lot of potential sources are going to be very reluctant to come forward in the future after seeing what Time Inc. and Cooper did.

  • Contempt for the press, which has infected both left and right far beyond reason these days, shouldn't get in the way of understanding what's at stake here. This affects all reporters and all media outlets, the ones you like every bit as much as the ones you don't.

    And remember: White House abuse of anonymity and the media's supine acceptance of it won't be affected one whit by any of this because trashing your enemies anonymously isn't illegal. Conversely, whistleblowers break the law all the time and presidents are always eager to catch them. There have been a succession of recent cases similar to the Plame investigation, and they paint a grim picture of the government increasingly using its power to force reporters to act as their agents. The lesson for reporters' sources is obvious, and if this trend continues we'll all be the poorer for it.

  • So what's the bottom line? We're not talking about a heroic truthteller in this case, we're talking about a couple of cowardly administration apparatchiks who outed a CIA agent for purposes of grubby partisan revenge. Why should a shield law protect them and the reporters who did their dirty work?

    That's a good point. And yet racist rags are protected by the First Amendment and mobsters by the Fifth. The fact that principles can be abused doesn't mean that principles should be tossed overboard. As far as I'm concerned, anything that gives the press an advantage in its ability to report on the inner workings of government is worth a lot, and if the price is the occasional failure to convict an unscrupulous politician, I'm more than willing to pay it.

All that said, there's at least one thing everyone should agree on: we need a federal shield law. I happen to think reporters need greater protection, and you might think they need less, but in either case we ought to spell it out instead of making reporters and courts guess. Let's argue it out in Congress and then pass something that makes it clear what counts as "journalism," what protection sources can expect, and exactly how far prosecutors can go. If there are exceptions for specific criminal acts, so be it.

But let's at least nail it down. There's no excuse not to.

Kevin Drum 8:53 PM Permalink | Trackbacks

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