Giving Reporters a Shield Means Issuing a License

The last time the world saw Judith Miller—at least the part of the world that watches CNN—the New York Times reporter was in the back of a large, comfortable-looking, blue limousine-ish automobile, waving at her fans as she was driven off to jail. By refusing to give up the name of a source to a federal grand jury and suffering jail for doing so, Ms. Miller has become the hero of the hour for American journalism.

However, equating Ms. Miller with John Peter Zenger or Elijah Lovejoy would be a mistake. Zenger was the New York newspaper printer-publisher whom the British tried for libel but who was acquitted, with much public rejoicing. Elijah Lovejoy, an Alton, Ill., newspaper editor, was murdered by a mob for his abolitionist editorials. Although Ms. Miller’s supporters are invoking martyr’s status for the incarcerated reporter, her claims to such a distinction are sketchy, if not next to nonexistent.

From what we know of this case, Ms. Miller may or may not have been told by someone—perhaps high up in the White House or perhaps not; perhaps by Karl Rove, President Bush’s top ghoul, or perhaps not—that a woman named Valerie Plame was a C.I.A. undercover agent. Such disclosures are against the law. But that is just the beginning of this tale.

As we all know, Ms. Plame is the wife of Joseph Wilson, a retired State Department lifer who, during the run-up to the Iraq war, had been sent to Africa by the C.I.A. to learn if someone there was selling Saddam Hussein yellowcake uranium, from which a nuclear weapon can be made after much processing. The yellowcake story, it turned out, was but another of Mr. Bush’s urban legends.

There matters might have rested, except that in July 2003, Mr. Wilson wrote a New York Times piece attacking the President for the inaccurate claim. A few days later, Robert Novak wrote a column revealing that Ms. Plame was a C.I.A. undercover agent and saying that she had arranged the Africa junket—if junket it was—for her hubby. This was on the authority of two nameless “senior administration officials.”

Then all hell broke loose. A special prosecutor, Patrick A. Fitzgerald, was appointed to find out who had broken the law by letting it out that Ms. Plame was some kind of secret agent. Matthew Cooper, a Time magazine correspondent, and Ms. Miller were ordered to appear before a grand jury to reveal who had given them the information about Ms. Plame. Oddly, Ms. Miller wrote nothing about the case. How she was pulled into (or pushed her way into) the case hasn’t yet been satisfactorily explained.

Nor has much else about this affair. All we have are glimpses of a lot of people with axes looking for the sharpening wheel. We have an angry Joe Wilson, an apparently vindictive Karl Rove, a slimy Robert Novak, and a bunch of politicians and news executives preening and carrying on about freedom of the press.

And we also have the martyred Ms. Miller, who—whatever information she may or may not have received from whomever—didn’t use it to write a story. She has chosen to go to jail for concealing the name of a news source for a story that was never written. It is too much to say that this whole thing stinks to high heaven—but at a lower altitude, it is giving off an unpleasant odor.

Although few of her journalist compadres are inclined to swim against the tide and say it out loud, in private some have noted that, until Ms. Miller offered herself up as a hecatomb of the free press, she had achieved the status of being one of the least trustworthy, least-admired practitioners of her craft. Prior to this affair, if there had been an anti–Pulitzer Prize, not a few of her colleagues would have put her on the short list for the honor.

In New York magazine, Franklin Foer condensed a part of the record that had gained Ms. Miller the angry disgust of other reporters: “During the winter of 2001 and throughout 2002, Miller produced a series of stunning stories about Saddam Hussein’s ambition and capacity to produce weapons of mass destruction …. And, most memorably, she co-wrote a piece in which administration officials suggested that Iraq had attempted to import aluminum tubes for nuclear weapons …. ”

It was such prose that made Ms. Miller The Times’ queen of military pulp fiction. It also made her perhaps the most important journalistic collaborator in Mr. Bush’s propaganda campaign leading up to and justifying a war that the United States can’t win, can’t lose and can’t end.

Whether or not Ms. Miller is using this affair to rehabilitate a soiled career, she has become the hero, and Norman Pearlstine, Time’s editor in chief, has been designated the un–Judy Miller, a corporate coward and betrayer of journalistic ideals who chose to honor the subpoena and turned over to the government copies of Mr. Cooper’s notes and tapes. Given that this is a criminal case involving the outing of C.I.A. operatives, what else was the man supposed to do?

Writing in this newspaper, Robert Sam Anson had an answer to that question: Mr. Pearlstine shouldn’t have put his stockholders’ interests first (although this is the kind of case that could cost those stockholders $1 million a day in fines for defying the subpoena) or invoked “the primacy of law over principle.” But Mr. Pearlstine is a business executive—and even if he wasn’t, how becoming is it of anyone to ask another man to make the sacrifice or be the hero?

Most members of the respectable media agree that Mr. Pearlstine deserves condemnation for his actions. He has drawn the wrath of editorial comment from east to west, north to south. But Mr. Pearlstine can take comfort: Social history tells us that when you have majority lineups like this, they are almost never right.

With Ms. Damaged Goods Miller as Exhibit A, a hue and cry has been raised demanding that Congress pass a shield law protecting reporters from being forced to reveal the names of news sources to whom they’ve promised confidentiality. It’s been argued that such an exemption from legal process for reporters is a First Amendment right. However, a quick read reveals that claim to be a stretch: “Congress shall make no law … abridging the freedom of speech, or of the press …. ”

A shield law may actually be a form of abridgement, as ironic as that may sound. Look at it this way: To administer a shield law, the authorities would have to determine who is a reporter and who is not. Would Ms. Miller, an employee of a corporation capitalized at many billions of dollars, be protected, but a lowly blog writer (i.e., not employed by a profit-making mass-media firm) be left unprotected? Unless everyone is covered by it—in which case the shield law is meaningless—designating who is a legitimate reporter and who is not is a form of licensing of the press. And if that isn’t abridgement, what is?

(On occasion, of course, the media is willing to accept a minor form of licensure it if adds to the comfort and convenience of its members. Hence, New York City news people apply for special license plates permitting them to park where the hoi polloi are forbidden.)

Putting aside legalistic arguments, is a shield law desirable in any case? Should reporters be encouraged to give out promises of confidentiality, or does the ease with which they do so facilitate reckless and destructive journalism?

The baseball player Barry Bonds has had his reputation grievously damaged by grand-jury leaks about his alleged use of steroids. You don’t have to be famous, however, to find that government people are leaking you into jail, bankruptcy and/or public odium.

For the most part, major leaks come from government sources. The practice of leaking grand-jury material to reporters who have promised confidentiality to the leakers is so common that grand-jury secrecy has become a joke. The Justice Department, among other agencies, routinely uses the reporter’s “confidential source” gimmick to destroy reputations, to send warnings, to poison jury pools, to practice the politics of personal destruction, to prejudice public opinion, to pump out propaganda and to punish people unlucky enough (or stupid enough) to irritate federal prosecutors. In the end, reporters, editors and news corporations become the shields not of whistle-blowers but of politicians’ lies.

The promiscuous use of promises of confidentiality by reporters has reached the point that the news business is part of a huge slander mill. This is not to deny that there are whistle-blowers in government offices and private firms who have important information, but are reluctant to give it unless they can be sure they’re safe in their jobs. However, there are not many such people. Most leakers will leak—with or without a reporter’s promise of confidentiality—because they have their own motives for pushing the information out into the public. On those few occasions when a source has truly important information and insists on secrecy, a reporter has a serious decision to make—especially given the consequences if that reporter is called upon to make good on the promise.

The lack of a shield law works to encourage reporters to be parsimonious with promises of confidentiality and to understand that they are not to be given out to help a prosecutor ruin a star baseball player because it’s a good career move. On those rare and grave occasions when the promise ought to be made, a reporter can do so recalling to mind Elijah Lovejoy and those of today’s journalists who have given their lives for their work. At its best, it is a noble calling. Let’s not cheapen it.