The last few days, I've made a couple of false starts at a post about the jailing of reporter Judith Miller in the Valerie Plame leak investigation. It's been tough to write since I'm moving away from my previous, long-held belief that the right of the Free Press should trump just about everything, and that reporters should never be forced to reveal their sources. I no longer believe that as strongly as I once did.
What's changed? Well, first of all, the definition of a journalist has become much more ethereal. Obviously, a lady who writes for The New York Times is a journalist. Is someone who writes for Salon? Newsmax? How about Matt Drudge? If he is, then why isn't Jeff Gannon? At some point in the world of weblogs, does the standard get so fuzzy that I qualify? I'm not sure how you can have a special privilege for journalists unless you can clearly define who is one. I would be curious as to whether the various state "shield laws" have some sort of airtight delineation or if it's possible that you could be entitled to the privilege in one state or not in another…or if one judge could say you are while another says you aren't.
Secondly, the Plame case provides a nice template for how the asserted privilege can be used not to reveal but to protect wrongdoing. It's possible that owing to the technicalities, no law was broken in this matter. But if not, someone sure came close, so we have a "real world" example, not one of those science-fiction hypotheticals: "Well, what if revealing a reporter's source would stop a nuclear bomb from going off?" If there's a law against outing Valerie Plame's C.I.A. status and if that law was broken, what steps can be taken if a reporter can insist the privilege applies? Obviously, a law that can be broken without a real fear of prosecution isn't much of a law. Is it even remotely possible that someone could be convicted of leaking to a reporter if that reporter can refuse to testify? If not, why have the law? And is there any other place in our society where a person can assert they have some legal privilege and no one can rule that they're wrong?
Lastly, the whole notion of Anonymous Sources seems to not mean what it once meant. Once upon a time, they were officials, mostly lower-ranked, risking their careers to make sure the public learned what was really going on in their government. These days, it's more often a matter of higher-ups being able to plant news stories of questionable accuracy without attribution. So much of this went on in The New York Times for a while that the paper felt it necessary to apologize for it and to promise that there would be less reliance on unnamed sources. If they've cut back, I sure haven't noticed…and by the way, though they didn't apologize specifically for her, the Times reporter who was most guilty of this — of serving as a blind conduit for government smears and fibs — was Judy Miller.
The legitimate whistleblowers need protection. But if Karl Rove (or anyone in the Bush administration) really did leak something about Valerie Plame for political damage, that's not worthy of the privilege. Neither are some of the bogus stories that were leaked out of Ken Starr's office, leaked out of Senatorial committees to damage the White House, leaked out of the White House to damage everyone else and/or shore up the case for invading Iraq, etc. Exposing corruption is one thing but being an Anonymous Source is becoming a great way to be able to spread negative, possibly phony, stories about your enemies without ever having to accept responsibility for them. Somehow, the part of me that believes fiercely in Freedom of the Press is having a hard time marching for this cause.