Freedom of the Press Club

Do journalists' anonymous sources need special protection?

Is the U.S. Supreme Court's decision not to hear the certiorari petition of journalists Judith Miller and Matthew Cooper a "retrograde and freedom-curtailing decision," as Reporters without Borders claims? Will it cripple "the press's ability to report fully and freely on matters of public concern," as the head of the American Society of Magazine Editors contends? Should Congress follow the bidding of the Newspaper Association of America and enact "The Free Flow of Information Act," which would give journalists in federal courts "shield" protections similar to those in place in 31 states and the District of Columbia?

Those are the questions in play after the Court refused to hear the appeal of The New York Times' Miller and Time's Cooper. The duo have been cited for contempt of court for refusing to cooperate with the special prosecutor investigating who leaked the identity of CIA agent Valerie Plame. As the Washington Post summarizes the case:

Both have declined for more than a year to identify confidential sources they spoke with in the summer of 2003 about government efforts to discredit a high-profile critic of President Bush's argument for going to war with Iraq: former ambassador Joseph C. Wilson IV, the husband of CIA operative Valerie Plame. The reporters could face as little as one month in jail or as much as 18 months.

There are many reasons to cut Miller and Cooper slack in this particular case. Miller, for instance, merely did some reporting on the matter but didn't publish a story about Plame. The reporter who originally named Plame in print—Bob Novak—hasn't been forced into court. Time argues that the original aim of the federal investigation—attempting to see if a Bush administration member had broken the law by divulging the name of an undercover operative—has been replaced by a far less important goal—discovering whether a government official lied during the special investigation. That new goal, says Time, doesn't justify forcing journalists to divulge anything.

Whatever the merits of this specific incident, the larger issue remains: Should journalists get special privileges when it comes to testifying in courts? A majority of states already have shield laws in place that do just that; additionally, existing U.S. Department of Justice guidelines dictate that reporters should only be compelled after all other avenues have been exhausted. The logic behind this sort of thing is plain. As the head of the Newspaper Association of America told the press, "If reporters are prevented from getting the real story because their access to confidential sources is restricted, citizens do not receive the information to which they are entitled and the public interest isn't served….The free flow of information is crucial to a well-informed citizenry and is often the only real-time check on government power."

That's a pretty strong argument, even if it's knee-deep in the great gag-inducing tradition of journalistic self-congratulation. One thing that's worth pointing out, as Slate's Jack Shafer did to the Columbia Journalism Review earlier this year, is that the Miller and Cooper case, along with a spate of similar incidents, is hardly the end of the First Amendment. "There is a little bit of hysterical nonsense going on here," Shafer told CJR. "The fact is, prosecutors demand sources all the time."

But why not champion a new federal shield law and more state-level ones? As my Reason colleague Matt Welch, who generally supports such legislation, has pointed out, all sorts of non-journalistic types are shielded, too, including doctors, lawyers, spouses, and more.

But there's the rub: Shield laws, in the end, confer on government the effective right to license the press—to define who is and isn't a journalist. (True to form, establishment journalists, who often enjoy great influence and close relationships with legislators, have shown little compunction in casting non-traditional journalists to the wolves. The Los Angeles Times' David Shaw, for instance, would deny that bloggers are worthy of protection.)

Historically, the ability to define "who gets to play journalist" has constituted a far greater threat to a free press than the off-chance of getting cited for contempt for refusing to divulge sources. Pace the American Society of Magazine Editors, the wringer that Cooper and Miller are being put through is exceedingly unlikely to end the age of anonymously sourced exposes of government wrongdoing any more than Branzburg v. Hayes, the 1972 ruling that declared that reporters didn't have special privileges, did. In declining to shield journalists, Justice Byron White, writing for the majority, declared, "From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished." So it has in the past 33 years. And so it will likely continue to do.