Reporters aren’t above the law

When Robert Novak first reported that people in the Bush White House had identified Valerie Plame as an undercover CIA operative, the New York Times was in high dudgeon. Plame is married to Joseph Wilson, a former State Department official who went to Niger in search of evidence for the Iraq war, and then wrote (in the New York Times) that he couldn’t find much. Outing Wilson’s wife appeared to be the Bush administration’s revenge.

The New York Times editorialized: “If someone at the White House

It looks as if what the New York Times found so alarming is exactly what happened. The coverup is crumbling. Wrongdoers may be exposed and punished. All no thanks to the New York Times. If the world worked as the New York Times thinks it should, the coverup would be rock-solid.

So the noble principle for which New York Times reporter Judith Miller -- egged on by her employer -- now sits in jail is the right of journalists to participate in efforts to stifle dissent, censor free speech, abuse power, and then cover it all up. No? Well, not exactly. Secret sources can be whistle-blowers themselves, helping to expose corruption and needing anonymity to do it. Deep Throat, for instance. That is more what journalists have in mind when they say that anonymous sources are essential to freedom and democracy. But that is not the current case, and it may not even be the case most of the time.

In a ringing and utterly uncompromising editorial Friday, the Times noted correctly that even its earlier editorials on the need to expose and punish “an egregious abuse of power” had warned against any “attempt to compel journalists to reveal their sources.” But these directives are irreconcilable. The “egregious abuse of power” was leaking secret information to journalists. The leaker has a 5th Amendment right not to testify. If journalists have a 1st Amendment right not to testify, then the “egregious abuse of power” cannot be exposed or punished.

For all the grand talk about the 1st Amendment, this isn’t about the right of the press to publish information. It is about a right to keep information secret. The government has secrets too. Even the New York Times acknowledges that sometimes the government’s right to secrecy is more important (wartime troop movements is its single, melodramatic example). And even the federal government recognizes the social utility of a vigorous press. That’s why it goes out of its way to avoid demanding trial evidence from journalists in most circumstances. From this, it is easy enough to imagine a compromise, ideally reflected in a federal journalistic shield law that defines the situations in which journalists can and cannot protect the sources.

One problem in getting from here to such a compromise is that Miller, Time magazine reporter Matthew Cooper and the others are being asked to break promises of confidentiality they have already made. That is hard. If journalists routinely promise anonymity and routinely are forced to break those promises, this will indeed create a general “chilling effect” on leaks. But the real issue is whether the promises should have been made. Under a clear set of rules, the “chilling effect” would be limited -- not perfectly, but primarily -- to leaks that ought to be chilled and to promises of anonymity that should not be made.

A bigger problem is that no reasonable compromise would give journalists victory in cases like the current one, in which the leak is not just evidence of crime but the crime itself. Some journalistic voices (for instance, the Washington Post editorial page) have decided that the crime at issue isn’t so egregious after all.

The law against outing CIA agents is tricky, and the outing of Plame may not have broken it. This would be convenient, but it comes closer to illustrating than obviating the dilemma. If no one has done anything wrong, there is no reason to force journalists to reveal a source’s identity. Ditto, perhaps, if the illegality is minor or if there are other ways to nail the miscreant. Make all the exceptions you want. But when you’re through, there will still be situations where the choice is doing justice or protecting sources.

The biggest problem standing in the way of a compromise is that journalists who share the philosophy of the New York Times assert the right to decide unilaterally. Even if they acknowledge the possibility that their needs don’t always trump everybody else’s, they insist that their judgment -- any individual journalist’s judgment in any particular case -- does trump everybody else’s.

Norman Pearlstine, Time Inc. editor in chief, made the essential point in agreeing to turn over Cooper’s notes after the Supreme Court declined to review the case. He noted that even President Richard Nixon, who claimed a constitutional right to protect the Watergate tapes, turned them over when the Supreme Court said he had to. Having litigated their own claim all the way up through the court system -- and having lost -- do journalists go beyond even Nixon and claim a right to disobey the judicial system’s final determination?

Answer: Yes, they do.

Or at least the New York Times does. The Friday editorial asserts that this is not a matter of being “above the law.” It is a matter of “civil disobedience.” In societies that are not democracies or lack a legitimate judicial system, nonviolent civil disobedience is an admirably restrained method of attempting political change. In societies in which laws are democratically enacted and fairly enforced, for the most part, purposely breaking them is a tactic that needs to be justified by some enormous injustice, such as denial of full citizenship to a minority.

The New York Times is an influential newspaper owned by a large corporation. It is claiming an exemption from one of the normal duties of citizenship. It has hired some of America’s best lawyers to pursue this claim through every available avenue. And then, when the claim has been rejected, it encourages its employees to defy the courts and break the law. If that is civil disobedience, then almost any law that anyone does not care for is up for grabs.

Polls show deep distrust of journalists. A non-journalist looking at a situation in which secret information is traded for a promise of confidentiality might logically wonder why journalists aren’t being pursued as participants in a crime, not just as witnesses. Yet, fortunately, that possibility is not even part of the public debate. American society is willing to meet us more than halfway on this one. Journalists are fools to demand more.

Note: This is obviously a contentious topic among journalists. Most of my colleagues at the Los Angeles Times, including the editor himself, disagree with what I say here.

I also should note that The Times is involved in a case similar to the one discussed here, but with a crucial difference: The plaintiff -- Wen Ho Lee, the former nuclear physicist at the Los Alamos National Laboratory in New Mexico -- has brought a private lawsuit (against the government, not The Times) demanding testimony from a Times journalist about his sources for a news story.

Even a skeptic about journalists’ privilege like me recognizes the unreasonable burden on a free press if anyone who wishes to file a lawsuit, whatever its merits, can then subpoena a journalist and expose all of his or her notes, methods and sources.