Are journos above the law?

http://www.JewishWorldReview.com | George Bernard Shaw once wrote that the problem with newspapers is that they often seem "unable to discriminate between a bicycle accident and the collapse of civilization."

This week's "collapse of civilization" — or at least of press freedom in these United States — came from the D.C. Circuit Court of Appeals: It ruled that two reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, must reveal their sources in the case of outed CIA official Valerie Plame or face jail time.

Plame is the wife of Joseph Wilson, the ex-ambassador who investigated reports of Iraqi uranium dealings in Africa for the Bush administration, then turned into a public critic of Bush's Iraq policy. Her name was revealed in a column by Robert Novak, and reporters Miller and Cooper also received leaks from "senior administration officials" allegedly out to discredit Plame's husband.

They've both refused to say what they knew or who told them. But disclosing the name of a federal agent is a crime, and the court nixed the reporters' claim that the First Amendment grants them the right to protect their sources in a grand-jury hearing.

The journalism profession has been having a rough time of it this year. Conservative pundits Armstrong Williams and Maggie Gallagher were flogged for real or imagined conflict-of-interest ties to the Bush administration. Heads rolled at CBS after Dan Rather's snafu with falsified National Guard documents. And CNN bigwig Eason Jordan resigned after making careless allegations about U.S. troops in Iraq targeting journalists.

So, in a way, watching Miller and Cooper stand by their professional integrity is wonderful. They deserve applause for it.

But that doesn't mean the courts are wrong.

Miller and Cooper's defenders argue that reporters should be granted the same privileges extended to other professions in which confidentiality is imperative. But there's a difference: Though it often seems otherwise, a journalist's sources aren't his or her clients.

Unlike lawyers, psychiatrists or priests, reporters don't really have clients — specific individuals whom they're contractually and ethically bound to serve. Sure, it's in the public interest that journalists be free to go about their work. But that doesn't give them the right to protect the perpetrators of crime, just because it results in "news" that can be put in the paper or on TV.

Cooper and Miller were engaged in nothing so cynical here, and indeed, whether there was any deliberate crime is still unknown. But the broader principle as it pertains to grand-jury hearings remains.

This is all very uncomfortable territory for the mainstream media, which seems to want the law's sanction as a breed of supercitizens. Time Editor-in-Chief Norm Pearlstein commented after the verdict that "We continue to believe that the right to protect confidential sources is fundamental to journalism." (He'd have my vote if he'd simply used the word "duty" instead of "right.")

Sounding a similar theme, Baltimore Sun editor Tim Franklin this week objected to a judge's ruling that Gov. Robert Ehrlich couldn't be sanctioned for barring state employees from talking to two particular reporters. Franklin called the ruling "scary" and "not only unconstitutional but undemocratic."

Let's all just take a deep breath. The press doesn't have a "right" to know anything it wants, or have access to whomever it wants. The power and freedom of the press is that it has the right to publish whatever it wants.

Miller never wrote about the Plame controversy, and has held that up as a reason why compelling her testimony is more absurd. In fact, the opposite is true. If telling her the name of a CIA agent was a crime, then she's even closer to the situation of an ordinary citizen who witnessed a crime. We can all be compelled under many circumstances to testify to our direct knowledge of lawbreaking.

This is not to say I don't strongly sympathize with Miller and Cooper, who obviously are not criminals, and whose purpose is not to protect criminals. I hope a judge will recognize the principle Miller and Cooper are upholding and exercise some judicial discretion. But the concept of "civil disobedience" originally included the idea that dissenters were willing to accept the prescribed legal punishment for what they considered their moral stands.

Miller and Cooper's predicament isn't easy. But there is some justice in knowing they're in the same boat as ordinary citizens, who are often placed in difficult and unpleasant situations as the result of witnessing a crime as well.

JWR contributor Collin Levey is a weekly op-ed columnist at the Seattle Times. Before joining the Times in September 2003, she was an editorial writer and editor for The Wall Street Journal. Comment by clicking here.

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