New York Times reporter Judith Miller and Time magazine correspondent Matthew Cooper face the possibility of jail time for refusing to divulge confidential sources to a special counsel investigating the leak of an undercover CIA officer’s identity.
On Oct. 10, Michael Kinsley wrote a column in the Los Angeles Times questioning whether reporters had an “absolute right and an absolute duty” to protect confidential sources.
Bill Keller, executive editor of the New York Times, sent the following letter in response:
Michael Kinsley’s case for throwing uppity reporters in jail is law-school clever, but it feels weirdly detached from the real world where most journalists work. Kinsley slyly sets up a straw man, the idea of an “absolute” privilege for reporters protecting confidential sources, and then he knocks it down. He poses a black-and-white choice between protecting the secrets of America’s security services and protecting the sources of journalists -- a choice that exists mostly in theory.
There are a few jurisdictions -- New York and the District of Columbia are among them -- that offer reporters an absolute protection against being forced to divulge confidential sources, and so far those laws have not brought down the justice system. But most of the 31 states that have enacted shield laws offer a limited protection. They set up a test aimed at balancing two genuine public interests: on one hand, the pursuit of justice; on the other, the public value of reporters’ ability to find out what is going on inside large, powerful institutions. A typical test is something like this: Before a judge can compel a reporter to divulge a source, it must be shown that the information sought is critical to the case and cannot be readily obtained from other sources.
In the federal courts, which propose to send Judy Miller and Matthew Cooper to jail, the test tends to be weaker. And when it comes to grand jury proceedings, under Supreme Court precedent there is almost no privilege -- and the government does not even have to tell us what it wants to know, or why. Thus in the case before us -- the search for who divulged the identity of Valerie Plame -- the special counsel does not have to explain why the identity of the leaker is unavailable from the man who published it, Robert Novak, or from whatever sources the counsel’s staff already suspects provided him the information. As far as we can tell, the special counsel is on a fishing expedition. This debate is not about an absolute right to protect sources; it’s about the absence of any right whatsoever.
Kinsley also objects that in this case the leaker is not some endangered whistle-blower but “the powerful institution itself,” a White House operative using a leak to punish a dissenting voice. I don’t know if that suspicion is true, and neither does Kinsley; that’s what the special counsel is investigating. But even if that were so, should it be left entirely to prosecutors to determine which anonymous sources are benign and which are malicious? If so, what’s left of the protection?
Kinsley is right that journalism needs to be more discriminating about which sources will be promised anonymity. The casual reliance on nameless sources has contributed to public mistrust and undermined the authority of stories in which anonymous sourcing is genuinely important. We need to clean up our act, and at my newspaper and others we are trying to do so.
But it’s naive to think special prosecutors will reward our scrupulousness and stop issuing subpoenas to reporters as long as the law gives them an unrestricted fishing license.
Just so we’re clear, I agree with Kinsley that there is a public interest in protecting the identity of covert intelligence agents. It is not the only public interest, however. Kinsley cites the 5th Amendment right against self-incrimination as one interest that a court should weigh in the balance. I would argue that the ability of a free press to do its job is another. Had they labored in the current climate of mistrust and hostility, the founding fathers might not have dared to enact a 1st Amendment. But they did, and they had in mind that news organizations, however imperfect, are a useful check on the people with power over our lives.
New York Times
Michael Kinsley responds:
What follows are my views. They do not necessarily reflect the views of the Los Angeles Times. In fact, forget “necessarily”: They definitely don’t reflect those views, which are closer to those of Bill Keller and the Other Times.
I do believe that journalists should be able to protect the identity of their sources in many circumstances. If Keller believes that this privilege is not absolute, we are not so far apart. In a phone conversation, New York Times Publisher Arthur Sulzberger Jr. also emphasized that he did not favor an absolute privilege. But a recent New York Times editorial and a signed Op-Ed piece coauthored by Sulzberger gave no hint of non-absolutism. A PR tip: Make your reasonableness better known.
But there is still a problem. The case at hand involves the illegal exposure of an undercover CIA agent. If this doesn’t trump the journalist’s privilege, what will? And yet the press is giving this case the full Floyd Abrams Big Constitutional Deal treatment. I agree that the privilege will not be worth much if it doesn’t apply whenever breaking some law is at stake. There are too many laws, and it’s too easy to pass more. But this is a law Keller, Sulzberger and I all approve of.
Furthermore, the crime is a secret conversation between two people, one a journalist and the other the target of a criminal investigation. Because the illegal leaker will have a right against self-incrimination, a journalist’s right not to testify will often make such a prosecution impossible.
Keller suggests that I am wallowing in theory while he is dealing with the real world. As a description of our jobs, that’s probably true. But this is the point in the argument where he seems “weirdly detached from the real world.”
He says that neither he nor I knows whether the leaker of Valerie Plame’s name was an institutional spinner or a courageous whistle-blower. Please. Under what imaginable scenario could it have been a whistle-blower?
It’s not clear where Keller, as a non-absolutist, would draw the line. He thinks that a judge should have to determine that the information at stake is crucial and can’t be obtained any other way. Is that all? The investigation into the leak might well meet that test. If a judge rules that it has, will he tell Judy Miller to go ahead and betray her sources?
As Keller says, prosecutors should not have absolute discretion to decide which confidential sources are benign and which are malignant. But journalists shouldn’t have absolute discretion either. We need rules. Fleshing the rules out in advance is the best way to keep journalists out of jail for trying to keep promises they shouldn’t have made. But those rules will have to bite harder than most journalists are currently willing to contemplate.