What, exactly, is freedom of the press? Is it the freedom not to testify to grand juries? I sure don’t think so. I think freedom of the press is the freedom to investigate and publish without prior government restraint; the freedom of the press isn’t a trump card over any and all consequences. And last time I looked in the constitution, it said nothing about “the public’s right to know.” To know what exactly? Apparently not the identity of sources.
Judith Miller is in jail for refusing to name a source to a grand jury conducting a criminal investigation. I don’t see how freedom of the press provides any coverage here, especially since there’s every possibility that the source committed a crime, and the crime itself was a source disclosing confidential information. To my mind, Ms. Miller is clearly breaking the law by impeding a criminal investigation and has no basis for the claim that she has a legal right to confidentiality. The promise of confidentiality at this point is an illegal contract, and can’t (nor should it) be enforced.
But the press tells me there’s a bigger issue here – the ability to protect confidential sources. They tell me this is very important for America, and often mention Watergate. Well. President Nixon’s underlings were investigated, indicted, and convicted by the judicial system, and President Nixon resigned rather than be impeached and convicted by Congress. From my vantage point, the triumph of Watergate is that the separation of powers worked, not that the fourth estate was needed. It wasn’t. It didn’t do a darn thing but report what real branches of government (and in the case of Woodward and Bernstein, the executive branch) were doing. Confidential sources contributed nothing to the outcome, even if they contributed to the Washington Post’s bottom line.
But what about the case of a whistleblower who bravely steps forward to alert the public to danger? By and large, these are not criminal offenses and the confidentiality protects the whistleblower from reprisal, not criminal investigation. And where a crime is committed, or may have been committed, the proper resolution is that it be adjudicated by a court, not stonewalled by a reporter. That is, the source should have their day in court so that their deed can be judged, not hidden because of a reporter’s promise.
Ultimately what the press is asking for is the easy road, not the best road. They truly do want to be above the law, which is wrong. Ms. Woolner skirts the issue:
Still, reporters, like prosecutors, can’t always choose their sources. We find ourselves getting information from people with their own agendas, some of them lacking a certain degree of character. The trick is to independently assess the information, taking into account the weaknesses and motivation of the source. It is a task that can rarely be completed in that first discussion with the source, the one where the terms of the conversation and the degree of confidentiality are negotiated.
OK, how about just throwing in a clause that the confidentiality agreement is null and void if a crime is involved? How hard is that? Realistically, the journalist is in a weak position relative to the source, and journalists, especially big name journalists, rely on sources. So they have the Faustian bargain that is only alluded to — they advance the interests of the source, typically make the interest of the source their own, without fully knowing and understanding the interests of the source. And the interests of the source may have nothing to do with the public interest – in fact it might be quite the opposite. And given the rush to publish, it’s doubtful that the reporter ever has a full understanding of what the source is about, or is truly interested. But because on rare instances a source’s interests do coincide with the public good, we should treat all sources as advancing the public good? I don’t think so.
I have no illusions that because of this blog I’m a “journalist”, although technically I am. I don’t think I should get any special privileges or treatment because I post stuff to the internet where it can be read by others. Nor should be people get special privileges or treatment because they write stuff that is published and read by others. That’s just crazy talk.
Sourcing isn’t the only area the journalists and journalism want special privileges – they want special treatment for product liability. Thus they successfully argued for the malice standard for slander/libel. Thus they want measely correction columns to satisfy the informationally injured – both the party that was directly wronged and the consumers of the false information. Journalism is gung ho about everybody else being held to high standards and facing lawsuits, but about themselves, well, it would have a chilling effect. They don’t accept that argument from any other party, why should I accept it from them?
What would journalism look like if people could sue not based on maliciousness, but simple truth and accuracy? What if their consumers could sue and collect damages if they could show that their product wasn’t true and accurate as claimed? Ignorance, laziness, and disregard for others would quickly be banished as money talked, bulls**t walked. Yes, it would have chilling effect on the lousy side of journalism, but I’m not convinced that it wouldn’t lead to accurate stories based on fact, not opinion and restore the trust in journalism that is rapidly eroding — both of which can’t but help boost the bottom line. But that’s the hard way to excellence, and it’s much easier to move the goal posts.
One final note: I realize that contrary to Ms. Woolner’s published opinion which I linked to, Joseph Wilson did not discredit the Bush administration’s claim that Iraq tried to purchase Uranium in Africa – in fact he confirmed it, but then lied to Nick Kristoff about it as an anonymous source and then lied about it repeatedly as himself before ultimately admitting the truth that indeed Iraq’s then foreign minister, known as Baghdad Bob, made overtures to Nigerian officials that they interpreted as trying to buy uranium. I guess her column goes to the point I’m trying to make in more than one way.
