Consider the Source

By Tom Shoop

When a reporter goes to jail to protect a confidential source, it's painful for the journalist and the news organization involved, but usually good for journalism in general. Typically, such reporters are treated as heroes for having the courage to keep their word to brave sources out to expose wrongdoing, even when it means defying government prosecutors and judges.

That was not the case when New York Times reporter Judith Miller was imprisoned in July for defying a federal judge's order to testify before a grand jury about whether someone in the executive branch leaked to her the identity of covert CIA employee Valerie Plame. Outside of the media itself, no one seemed to care much about the situation. And that indifference is cause for concern about the evolving relationship between the federal government and the mainstream media.

Part of the problem was the nature of the Plame leak investigation. It remained unclear at the time of Miller's jailing why it was deemed so important that she testify. (She never actually wrote anything about Plame.) "To be frank, this is far from an ideal case," the Times' editors themselves acknowledged in a commentary on U.S. District Judge Thomas Hogan's decision to send Miller to jail. "We would not have wanted our reporter to give up her liberty over a situation whose details are so complicated and muddy."

Then there's the issue of who Miller went to prison to protect: Not a government employee who took great personal risk to reveal corruption or mismanagement, but (it seemed, anyway) someone connected with the Bush administration who sought to use the cloak of anonymity to undercut the credibility of Plame's husband, Ambassador Joseph Wilson. That made it a little hard to swallow the Times' contention that "If Ms. Miller testifies, it may be immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places."

Still, Miller's case is worrisome. Contrary to what many reporters themselves think, the protections for journalists against being compelled to reveal their sources are relatively weak - especially at the federal level. Indeed, the only time the Supreme Court took up the issue, in the 1972 case Branzburg v. Hayes, a majority of justices flatly rejected the notion that journalists had First Amendment cover to refuse to testify about their confidential sources. In a dissent in that case, Justice William O. Douglas warned: "If what the court sanctions today becomes settled law, the reporter's main function in American society will be to pass on to the public the press releases that the various departments of government issue."

That undoubtedly would suit many at the highest levels of government just fine. But it doesn't sit well with many career federal employees, who routinely express concerns to those of us who cover government about both the quality and quantity of information their agencies make public. I can report from a great deal of personal experience and observation that it is very difficult for reporters to get information out of government - even when it would cast an agency in a positive light. Many public affairs officers, for reasons that have always mystified me, believe that their job is to prevent journalists from getting information that has been generated at taxpayer expense. Others simply can't get their political bosses to see the wisdom of trying to make their best case to the media.

I won't try to defend all of the mainstream media's coverage of government, especially in recent years. Much of it has been driven by a cynical post-Watergate assumption that agencies always have something to hide. But those who shrug their shoulders at the prospect of imprisonment of a reporter who resists prosecutorial pressure in the interest of protecting a government source - even a self-serving one - should ponder the ramifications of their indifference.

In a column in Newsday after Miller was jailed, James P. Pinkerton noted that conservatives have cheered the weakening of the liberal media establishment in recent years. But, "If reporters are threatened with jail for doing their jobs," he added, "there will be occasion for second thoughts, as we are reminded that the ultimate enemy of freedom is the unchecked power of the state."