Wednesday, July 20, 2005

On the jailing of journalists for protecting sources (updated)

(Originally posted 08 July 2005 ... updates follow)

Journalism is information labor, and the ability of journalists to find and secure trusted sources is crucial to that labor -- crucial to useful, truthful journalism. In the current US media climate where "journalism" is too often redefined in the public mind to mean punditry, product placement, or puff pieces, we must remember that real journalism requires real labor, and often real risks on the part of both journalists and their sources. The best and most succinct statement of this with regard to the recent jailing of a New York Times reporter for adhering to her professional principles comes not from the "objective" US media, but from the avowedly left-of-center UK Guardian:

The American constitution no longer protects the unfettered freedom of the press. That is the only conclusion that can be drawn from the remarkable case of the New York Times journalist Judith Miller, who has just begun what is likely to be a four-month prison term for refusing to reveal her sources for a story that was never published. Protecting the confidentiality of a source, the US courts have ruled, does not outweigh all other considerations.

Rarely has the term Kafka-esque been used with greater justification than to describe the events leading to Ms Miller's imprisonment on Wednesday. Ms Miller had investigated - but not reported on - the naming of an undercover CIA agent, Valerie Plame, whose husband, a former diplomat, had written a New York Times article questioning the validity of key intelligence on the eve of the Iraq war. Mrs Plame was identified soon afterwards, in a column written by the rightwing polemicist Robert Novak. That naming was a criminal offence and an inquiry was launched into who had provided the information. Strangely, nothing is known of Mr Novak's contribution to the investigation, but Ms Miller was subpoenaed. In a further twist, Ms Miller has been highlighted as one of the New York Times reporters who had relied too heavily on Iraqi exiles for overstated reports of Saddam Hussein's possession of weapons of mass destruction. Uncharitable commentators claim she is now trying to redeem herself by her uncompromising stand in the current case.

Throughout, the US courts have accepted that precedence must be given to the task of bringing to justice the person who committed the crime of naming a CIA agent rather than the principle of protecting the confidentiality of a journalist's source. The British courts would, under the Human Rights Act, also have to balance the right to privacy with the right to freedom of expression.

Confidentiality of sources is an indispensible, if not an entirely untrammelled, weapon in the pursuit of truth, on which the Guardian writes with the humility of past experience. To reiterate one of those principles that Tony Blair promised to uphold after yesterday's London bombings: the more accessible truth is, the better informed the electorate, and the better protected democracy. It is not clear who Ms Miller spoke to or what she was told. But she should not be in prison and if the constitution does not protect her, then surely it is time for a federal law that will. And we should guard against this change in the legal climate crossing the Atlantic.

The tricky things about this story, of course, are that (1) the source being protected by the reporter is actually the person targeted for wrongdoing, not a whistleblower reporting the wrondoing of others; (2) the nature of the wrondoing was itself the source's "speech act" of revealing government security information to the reporter; and (3) the social and political context of the "war on terror" privileges the government's role in managing secrecy (remember too that the grand jury investigation itself is secret and may even be subject to "gag orders" restricting those who have participated so far). Keeping a reporter out of jail might have been easier if any one of these conditions had been different. And it would be easy to label this a "special case" where general press freedoms must be challenged. It's not an easy decision. But I have to believe that upholding the freedom of the press to use sources without revealing them to the state will, in the long run, increase the security of the US, and reproduce an environment where the truth will more readily be uncoverered -- even apart from secret grand jury investigations. Hopefully there are still smart and brave journalists out there willing to investigate the original story of the Republican Administration security leak, which after all was the real problem here, not the "liberal media".

Update 20 July 2005 ... as this story has unfolded and I've listened to and read more discussion on both the specific case at hand and the general principle at stake, I've come to agree that I should take into account a few other considerations in addition to the three I ended with above: (4) the reporter actually in jail didn't even write an article based on communication with the source, so it is unclear what public truth would come from protecting the individual (or whether that individual could even be regarded as a "source" for an article that was never written); (5) the reporters who did print information leaked by the source(s) were perhaps being used by the source(s) in a dishonest manner to smear a critic of the Bush Administration, in which case any truth-for-confidentiality claim might have already been broken; and (6) the profession of journalism should very well be held to a similar standard to other professions which regularly deal with personal confidences as a means to a greater good, such as medicine and law -- and in these professions precedents certainly do exist for deciding when confidentiality between a professional and an individual client (or source) must be abandoned in favor of the public good (or even the risk of direct harm to other indiviuals). Whew.

Some have sugested that the correct professional course of action, regardless of a personal reporter's desire to act on the basis of civil disobedience, would be to push for blanket shield laws, accept legal challenge to those laws on a case-by-case basis, and abide by the legal precedent set for interpeting these laws vis a vis the public interest or the absence of harm to other individuals. In other words, protect journalists, but trust in the rule of law, and abide by the law in the case of exceptions. After all, the legal system, like good journalism, also has a responsibilty to uncover the truth and protect the public interest (ideally). I'm coming around to this position, although I hope the fact that one of the sources "outed" under this logic is the architect of the two-time victory of an individual president, an administration, and a party whose policies I do not support has not unjustly influenced my position ... I want whatever standard the journalistic profession agrees upon, and whatever standard is written into federal law (and there SHOULD be such a standard), to apply equally well when the source being protected is distasteful to me as when the source is a hero to me -- but only if that protection serves the futher uncovering of the truth, and therefore the public interest.

But this is a more complicated issue than a blog post or two can do justice to (as are they all, really) so I'll sit on my hands now and watch the drama unfold before weighing in again. P.S. Thanks to a sly posting of Aaron Veenstra's over at Civility in Public Discourse for prodding me to rethink all this.

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