Other Voices of Dissent

Finally, some other voices in the media are joining Michael Kinsley in noting how absurd and contradictory the mainstream press corps' consensus position is regarding Judith Miller's refusal to testify before the grand jury. As I pointed out before, the New York Times' official position on this matter (which has been echoed ad nauseum by editorialists over the last few weeks) makes very little sense. It's a classic example of the phenomenon of self-serving media groupthink. But the voices of reason are finally starting to make themselves heard.

After noting the unfair savaging that Time Magazine editor Norman Pearlstine has received from his media colleagues following his decision to comply with the court order, Jacob Weisberg at Slate observes that "[t]his gang-bang speaks more to journalistic groupthink than to any real moral or legal reasoning."

An article in the Wall Street Journal this morning makes the obvious point that "even if a federal shield law were to successfully obtain Congressional approval and a presidential signature . . . it is unclear whether the law would have prevented Ms. Miller's jailing." The article notes that "[s]ince the Miller case arguably involved a crime being committed, it is unlikely her own case would have been changed by a federal shield law." This is no doubt true. As Weisberg correctly observes:

"No plausible shield law would, or should, protect a
reporter in this situation, because there's no way for
a prosecutor to develop a case against a perpetrator
without evidence from the recipients of the leak. The
New York Times might argue that the law against
leaking undercover CIA agents' names should be
repealed (as Christopher Hitchens does here). But the
paper can't coherently argue that the law should be
enforced and that its own reporter should prevent
its enforcement."

Exactly. Like all privileges, the journalist-source privilege exists to facilitate a type of communication that we as a society deem valuable. That's why we created the attorney-client privilege, the doctor-patient privilege, the priest-penetant privilege, etc. But none of those privileges is absolute. They all have carve-outs for situations in which they either don't make sense or are trumped by something society values more, such as the prevention of crime. The journalist-source privilege exists in order to encourage the exposure of corruption and wrongdoing. It does not exist to facilitate the commission of a crime. We as a society clearly feel that the exposure of top secret information, which can endanger lives and threaten national security, is not something we wish to encourage. That's why we passed a law making it a crime to do so. Any reasonable shield law or journalist-source privilege, therefore, must contain a carve-out for this very situation, where the leak itself may be a crime, i.e. something we wish to prevent, not encourage. An absolute journalist-source privilege makes no sense and does not further any worthwhile policy; indeed, it makes enforcement of the law impossible.

Over at the Washington Post, Howie Kurtz notes that many prominent legal analysts are critical of the New York Times' position on this matter. Kurtz also brings up the following, somewhat tangential point:

"Geoffrey Stone, a University of Chicago law professor,
said journalists, like doctors and lawyers, are under no
obligation to remain silent about a source who has waived
confidentiality. 'It's the source's privilege, not the
reporter's,' he said. 'If the source doesn't want
confidentiality, the reporter has no business insisting
on it. . . . If it's a matter of conscience instead of a matter
of law, you can do whatever you want. As a legal matter,
it's absurd.'"

This is also clearly true, and it feeds my suspicion that there is more to Miller's decision than merely standing up for a principle. I suspect she may be using the journalist-source privilege as an excuse to hide something that is personally embarassing or incriminating, or perhaps more likely, she is enjoying her new role as press martyr and thinks going to jail to protect a source will enhance her professional reputation and further her career.