More on Judith Miller and Reportorial Privilege

In this post form July 8, I took the New York Times to task a bit for arguing that the jailing of Judy Miller raised significant Constitutional issues:

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 also argued that it would be a mistake to adopt shield laws that would protect reporters from Miller's fate:

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.

That same day, Bob Garfield made much the same point in an editorial on NPR's "On The Media." It took me a week to track down links to this editorial, but here they are: Audio Clip, Transcript . He also offered a solution to the problem that I like:

[T]he nub of the affair [is] not whether anonymous sources are important in revealing the inner workings of government, especially one as secretive as the Bush Administration--of course they are--and not whether reporters need to protect their sources. Of course, they do. The moral of this story is that not every anonymous source is himself or herself a principled participant. Some of them are simply Machiavellian scoundrels, and we should take care about whom we make professional commitments to, and equal care about what commitments we are making. The solution is simple contingency, a promise of confidentiality with strings attached, each string specified in advance. . . . a journalistic Miranda warning, one that says this agreement is null and void if you, Mr. Source, are a liar or a fraud or engaged in criminal behavior unknown to this reporter right now because then, pal, all bets are off. Would that have a chilling effect on the flow of information inside the beltway? Probably. It would also have a chilling effect on the naked manipulation of the press. Judy Miller, considering her Pulitzer-prize winning way of conducting journalistic business, might be especially chilled. But she also wouldn't be in the cooler right now.