Judith Miller and Promises of Anonymity

Here is the NY Times editorial from yesterday on Judge Hogan's decision to send Judith Miller to jail, at the behest of federal prosecutor Patrick Fitzgerald, for failing to reveal the identity of a confidential source for an article she never wrote.

I have a good deal of sympathy and respect for Ms. Miller. She's obviously a woman of principle who is willing to make an extraordinary sacrifice to remain true to those principles. In so doing she is acting -- as the Times correctly points out -- in a tradition of non-violent civil disobedience that includes such luminaries as Henry David Thoreau, Mahatma Ghandi, and Martin Luther King. This is a tradition that we all should cherish.

But the fact that Ms. Miller's is acting nobly does not mean the government is acting ignobly. The Times would have us believe that sending Ms. Miller to jail is an attack on the First Amendment. It is nothing of the sort. The First Amendment guarantees the Times -- and Judith Miller -- the right to publish what they know. It does not, however, guarantee them the right to know anything. There is no constitutionally sanctioned right of the "public," much less the New York Times, to know anything.

I agree with the Times that the First Amendment's free press guarantee arose out of a conviction by the Founders that a free press was the best check on government abuse. I also agree that it is difficult for the press to perform this watchdog function without the ability to delve into matters that the government would prefer be kept secret. Finally, I recognize that the easiest way, and in some cases the only way, for the press to get information on government secrets is provide its informants with a promise of anonymity. But it does not follow from this that the promise of anonymity by a reporter to a source should be entitled to constitutional protection.

What is at issue in these cases is the credibility of the reporter's promise, not the First Amendment. Ms. Miler is admirable because she made a promise and is willing to go to jail rather than break it. The Times argues that the Constitution (or, failing that, legislation) should prevent the government from seeking to force her to break that promise. But the effect granting such protection is to cheapen the promise. With such protection, reporters take no risk by promising anonymity. As a consequence, such promises get made willy-nilly.

There is much debate today about the propriety of using confidential sources at all. Even the Times itself recognizes the risks inherent in this procedure and the necessity of taking steps to impose safeguards. What better safeguard could there be in this regard than to have the reporters themselves understand that, when they promise anonymity, they could someday be forced to choose between breaking that promise and going to jail?

The Miller case does not undermine the ability of the press to guarantee anonymity. To the contrary it demonstrates that the press CAN guarantee anonymity: after all, Judith Miller has not disclosed her source(s). But what the case does undermine is the belief by the press that promises of anonymity can be provided cost-free. To my mind, that is a good thing.