Press Freedom and the Law
“Only a Sith thinks in absolutes.” – Obi Wan Kenobi
So Judith Miller is going to the Big House and Matt Cooper gets to walk thanks to a last-minute change of heart by his anonymous source, and now the media is convulsed with ruminations over confidential sources and reportorial privileges. Because it’s the Press talking about the Press, there’s more than the obvious bit of bias in the discussion. The institution is jealous of its prerogatives, and is mightily trying to frame this as a matter where “freedom of the press” is the core and absolute principle.
I’m all for freedom of the press, don’t get me wrong. But it seems limiting to end the discussion there. Freedom of the press is guaranteed in our Bill of Rights not merely as a civil right, but as an instrument for the preservation of democracy. After all, only in a democracy is an informed public to be desired. If a government derives its power from force of arms, or from inherited privilege, or from religious claims, there is no real benefit in the people at large knowing what’s going on, since their opinion doesn’t matter (and is likely to be detrimental) to the exercise of government authority. Without freedom of the press, it can be argued, there is no democracy; but likewise, without democracy, there is no freedom of the press.
So I think it’s fair to say that in evaluating claims of media privilege under the First Amendment, it’s important to consider the context rather than merely the principle. If there is a larger issue central to the preservation of democracy at issue, it seems only reasonable to subordinate the idea of press privilege to the greater matter of finding the truth.
In this case, the context is extremely important. Usually, reporters keep anonymous sources confidential because the source has information that the government or another powerful institution is seeking to conceal from the public and fears reprisals if it is known who blew the whistle. This is all part of the cat-and-mouse game in which the government or any oligopoly seeks to monopolize the flow of information so it has more freedom to act, and the public, via the press, seeks the real story so it can exercise its rightful democratic authority and hold those in power to account. In such circumstances, the press should be allowed the widest possible latitude, and reporters given near-absolute discretion so long as they themselves are accountable to editors and professional standards, because when they are acting in this way, they are fulfilling their basic institutional function of preserving democracy.
The case of Miller and Cooper, and the mysteriously-unindicted Robert Novak, is the exact inverse of this situation. Here, a government official involved several reporters in a criminal conspiracy to disclose confidential information as part of a plot to discredit a political enemy, who was himself blowing the whistle on a government deception. That is, the goal of whoever told Novak and the others Valerie Plame’s identity was ultimately to distract and mislead the public by preventing Joe Wilson’s (true) claims from being taken seriously. In so doing, this person not only effectively ended the career of a key CIA operative during a time of national crisis (Plame was a specialist in nuclear proliferation), but put at potential risk an entire network of international intelligence assets. Even if this weren’t a crime, doing such a thing to gain political advantage is a shabby, disgusting and traitorous act. But it is a crime, under serious investigation by a Special Counsel.
I think, then, it’s proper to ask what purpose is being served by Miller’s silence? She is upholding the principle of confidentiality, and the bond of her personal word of honor, but toward the end of perpetuating a lack of accountability on the part of the government, and withholding information that the public has a right to know.
In my view, if either Judith Miller or Matt Cooper had taken a broader perspective on their roles as purveyors of truth – not just stories – or at the very least, recognized how they were being made accomplice to criminal activities on the part of a senior government official, the public would have had a much greater insight into the true character of the Bush Administration prior to the election, when such information could have properly informed the democratic process. Because there’s no way to sugarcoat this: Bush has knowingly shielded a criminal traitor in the White House for more than two years. His indifference to truth and justice in this matter is obviously motivated by political convenience and perhaps personal loyalty. His bosses, the American people, would have likely demanded better last November had they known the full extent of this. At the very least, Bush would have had the opportunity to demonstrate what he would have done had it been impossible to conceal the identity of the tattletale. Instead, an embarrassing revelation was kept under wraps until its disclosure could do relatively little political harm: the best-case outcome for a government that leads by keeping the public in the dark.
Matt Cooper and Judith Miller were accomplices, if not agents, of this deception. They invoked the privilege of press confidentiality, rooted in the First Amendment, to continue to conceal the truth from the public. That’s not principle: it’s a narrow, self-serving and positively perverse interpretation of the role of the press in a democracy. If they want to keep their word to their disgraceful worm of a source, so be it. But that’s a personal matter, not a Constitutional one. It’s not only right and proper that they go to jail for contempt (aptly-titled offense, that), but they should be pilloried, not valorized for their complicity in a serious crime and cover-up.
It’s argued that by compelling Matt Cooper to turn over his notes and putting pressure on him and Judith Miller to testify to the grand jury, the Court has potentially exposed all confidential sources to eventual disclosure, which will dry up the flow of leaks that are the lifeblood of investigative journalism. Again, I say look at the particulars. If inside sources are discouraged from using reporters to spread disinformation and anonymously libel their political enemies, is that a bad thing? It’s suicidally stupid to create a principle of press freedom so broad that it is incapable of making a distinction between legitimate acts of whistle-blowing and malicious (in this case criminal) dirty tricks.
I mean, how hard is it to understand that Daniel Elsberg or Deep Throat acted properly in leaking confidential information that happened to be damaging to the government under the circumstances they did, but would have been wrong if they had been acting on behalf of the government as part of an effort to mislead the public? Not every whistle-blower is pure-hearted; not all leaked information turns out to be true. But there seems to be a readily-understood qualitative distinction between people acting as government operatives using the press as an agent of deception, and people acting as individuals for whatever motivation. The latter deserve the absolute protections of confidentiality regardless of the circumstances; the former are using the democratic institution of a free press against the democratic aims of accountable government and deserve to be exposed for their misdeeds.
As I said, I cherish the free press. I also cherish a form of government where leaders are accountable to the public, and where misdeeds are exposed so that the public can act its will. The two are integrally related; it’s senseless to talk about one without the other, or to use the principles of the first to baffle the objectives of the second.
10:26:01 AM 
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