Friday, July 08, 2005

A shield law for journalists, but how far?

Marc Schneider has written a couple of excellent responses to my recent post on the Miller-Cooper-Plame-(Rove?) saga, and I encourage you to check them out.

One thing we both agree on is that there needs to be a federal shield law that sets guidelines for a journalist's interaction with an anonymous source. But the question is, how far should such a shield law go? Should it protect journalists in all cases, essentially allowing them to determine how they use anonymous sources, or should it perhaps provide exemptions when, say, a felony has been committed (as may be the case here) or where the public interest would seem to outweigh the need to keep the identity of an anonymous source secret?

On these questions, I tend to side with the freedom of the press to use anonymous sources without fear of punishment, but I acknowledge that this is a sensitive issue that needs greater thought and that the case for a more limited shield law is a fairly strong one.

For now, I also encourage you to check out the Times's editorial on Judith Miller (one of its own reporters):
She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so
journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government.

Some people - including, sadly, some of our colleagues in the news media - have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, "I have no such right and I seek none."

By accepting her sentence, Ms. Miller bowed to the authority of the court. But she acted in the great tradition of civil disobedience that began with this nation's founding, which holds that the common good is best served in some instances by private citizens who are willing to defy a legal, but unjust or unwise, order...

Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources...

We do not see how a newspaper, magazine or television station can support a reporter's decision to protect confidential sources even if the potential price is lost liberty, and then hand over the notes or documents that make the reporter's sacrifice meaningless. The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.

Needless to say, the Times supports the (limited) use of anonymous sources. In the end, I'd like to know who told Miller what about Plame -- that is, who outed Plame as a CIA agent. Maybe it was Rove, maybe it wasn't, but it could very well have been some highly-placed White House official. I still think that Miller and the Times are right and that journalists shouldn't be forced to reveal their anonymous sources -- and I say this because, to me, the freedom of the press is a cornerstone of democracy. A little less freedom may not seem like much, especially when an anonymous source may very well be a felon, but we need to be very careful before we push over what could be the first domino...

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  • I think the line must allow for inclusivity of the ambiguous, rather than chip away and into freedom of the press. However, the converse of this is that the press publishes true information. Should be verifiably true? I am not sure.
    Furthermore, I would place the sentence on the publication(s) rather than the indvidual, since it/they publicized the information and accepted the anonymous source. The journalist collects information on the publication's behalf. The editors determine what goes to press in the end. If they do not like or trust any aspect of an article, there is no obligation to publish it.

    This is related.
    I am concerned that the ability to interpret and critique media is seriously defincient. Too many people take information at face value and assume it is the Truth because it is in print or on television. If I see the phrase, "according to an anonymous source..." my flags go up that this is a person who has sought anonymity for a reason and that the information provided might be supplied for self-serving reasons.
    I do not know a remedy to this, but the inability to read and comprehend media in an active, critical way is a very serious problem in our society.

    By Anonymous Anonymous, at 11:47 AM  

  • I suppose I left my above thought half-finished.... although, as I reflect upon it, I don't have an easy answer.
    This is an excellent test case to examine if journalists should be protected from having to reveal their anonymous sources in court. It is a difficult topic to determine who is truly guilty and helps illuminate what areas "rights and freedoms" cover.
    1) Are Cooper and Miller guilty of failing to report a crime when Rove revealed Plame's id in the first place? Wouldn't a shield law make this type of situation less ambiguous. Of course, can one really verify a conversation?
    2) I don't think it is the job of journalists to find guilty individuals for investigators. If the investigation can not find what it needs to, it goes into the file of the unsolvable until a later date.
    3) I can not figure out why the editors of the Times allowed Novak's piece identifying a CIA agent by name go to press. As a whistleblowing piece, integrity, verity, and honesty are more important than a deadline. The editors should have been sensitive to this and sensitive to the issues such a piece would raise. I suspect that there are ways to report the same information without commiting a crime. If the editors asked Novak, where did you get this information and he said, Cooper and Miller. And then the editors go to cooper and Miller and ask, where did you get this informaiton and they say an anonymous source that we can't identify or from Rove but we can't let his name go to print.... Well, again, the editors were aware of the source or aware of the fact that it was from an unverifiable source... and they published it anyway. So, ultimately, I think the onus is somehow on them. Which isn't to say that I think anything should come of it. But this then becomes quite a different issue than the shield law for jouranlists.
    Anyway, complicated.

    By Anonymous Anonymous, at 1:23 PM  

  • I don't think this case is that complicated. Miller and Cooper had no right to promise confidentiality to someone whose SOLE purpose was to break the law for political purposes. Whatever the public policy value in general of the media's role in exposing government actions (and it is considerable), that was not this case. Rove or whoever simply wanted to (at least arguably) out Plame to get back at her husband. It served no public good for that information to leak out and, as a far as I'm concerned, the Times has no leg to stand on.

    That's not to say that there shouldn't be protection for legitimate confidentiality. But the media should not be the ones to determine the scope of that protection.

    I agree that it's not the role of the media to find guilty individuals (although they certainly were willing to take credit for this in Watergate). But it's also not the role of the media to facilitate felonious conduct.

    As far as placing the sentence on the institution rather than the individual, how do you do that? How do you send the New York Times to jail? True, Miller was acting on behalf of the Times, but the Times is not the one that promised confidentiality and refused to obey a court order. That was Miller. As far as I'm concerned, she should be in jail.

    By Anonymous Anonymous, at 2:37 PM  

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