Journalists need lessons in freedom of the press

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We can’t be surprised that judges, prosecutors and the public don’t care about sending a reporter to jail. But when journalists join the chorus of approval, we need to do some education in our ranks.

In training and education programs for budding journalists and veterans alike, we need to explain what the First Amendment means and how important the free press is to our democracy and our society. We need to teach journalists their responsibility to understand and defend that freedom.

The jailing of New York Times reporter Judith Miller damages freedom of the press, plain and simple. At a time when we are fighting wars in the name of freedom, a federal judge has sent a reporter to jail for exercising and defending one of our most precious freedoms.

That outrage is compounded by journalists who have echoed the nearly gleeful rant of special prosecutor Patrick Fitzgerald, who urged Judge Thomas Hogan to send Miller to jail.

“Miller is in jail because she promised confidentiality to a rat,” wrote Don Wycliff, public editor of the Chicago Tribune. “She believes that her job as a journalist exempts her from an obligation of citizenship that applies to all but a few other Americans in a few special circumstances: to testify truthfully when called as a witness before a duly constituted federal grand jury.”

Wycliff’s Tribune colleague Steve Chapman wrote that Miller was invoking a “legal privilege that exists only in the fertile imagination of journalists.”

University of Massachusetts journalism professor Bill Israel wrote in Editor & Publisher, “journalists as a community have been played for patsies by the president’s chief strategist, Karl Rove, and are enabling him to abuse the First Amendment, by their invoking it.”

Journalists are not seeking special rights. To the contrary, courts have singled out journalists in denying the rights that are clearly implicit in freedoms guaranteed in the Bill of Rights.

The First Amendment doesn’t explicitly promise clergy the right to protect confidential communication. But we universally recognize that right as implicit in the First Amendment’s guarantee of freedom of religion, rather than scolding priests and pastors for failing to meet their obligations of citizenship.

The Sixth Amendment doesn’t explicitly promise attorneys the right to protect confidential communication with clients. But courts recognize that confidentiality as implicit in right to counsel, rather than imprisoning and ridiculing lawyers for concocting a right from their fertile imaginations.

Marriage and therapy are not even mentioned in the Constitution, but courts have recognized the confidentiality of spouses and therapists.

It is not a stretch to say that freedom of the press includes a similar right to protect confidentiality. Rather, it is an illogical affront to suggest that reporters alone have manufactured a right similar to rights that are widely protected and respected in other professions.

Judith Miller was the most prominent reporter involved in the woefully inadequate reporting by the Times (and most of the news media) on weapons of mass destruction in Iraq prior to the U.S. invasion. That was clearly a low point in the free press’s history as a watchdog. She isn’t exactly the poster child journalists would choose to carry the banner for the First Amendment if we got to choose. But we didn’t choose this fight. A federal prosecutor and a federal judge chose the fight and the Supreme Court lacked the wisdom or courage to intervene.

The suggestion by Wycliff and Israel that the source’s lack of virtue is an issue at all reflects shocking lack of understanding of the issue. The source is irrelevant here. The press is either free to gather and publish information or we’re not. In exercising that freedom, we gather information, reliable and un, from a variety of sources, reliable and un. We hope to refrain from publishing the unreliable information, but the freedom does not depend on the virtue of the source or the record of the reporter.

If Miller’s critics ever did serious work as reporters, they have forgotten how the job works. Sometimes a reporter has to promise confidentiality before she can learn enough to know whether a source is a rat or not. Miller did not publish whatever information she received from Rove, or whoever her rat was. Perhaps she did not publish the information exactly for that reason. Perhaps her errors in WMD coverage improved her judgment in using confidential sources. Whatever the case, a reporter can’t withdraw the pledge of confidentiality after the fact because she decides the source is a rat. If you don’t protect the confidentiality of the rat, the virtuous whistleblower will never trust you. And shouldn’t.

Wycliff correctly noted that journalists let sources go off the record too easily. While that’s true and it affects the atmosphere in which the courts and the public perceive this case, it’s irrelevant to the principle. Freedom of speech and press is not freedom only for responsible speech and press. In fact, when the First Amendment was written, the press was grossly partisan and irresponsible. We should be more demanding of confidential sources as a matter of ethics or credibility, not as a matter of law.

Wycliff faulted Miller for refusing to fulfill her citizenship obligation in a “case of high importance to the nation’s security.” Perhaps in a case that really involved national security, the courts would have a difficult decision to balance competing valid claims. Every freedom conflicts at times with other rights or other public interests. That wasn’t remotely the case here. As Israel noted, this was a case of political payback. Yes, it would be nice if Fitzgerald could nail this source, whoever he is, with a perjury charge, but that’s hardly a matter of national security. To push aside a basic freedom in such a case is particularly offensive.

Now we have the absurd situation of Judith Miller behind bars when we can’t put Osama bin Laden behind bars and can’t keep people like Joseph Edward Duncan III behind bars.

As confusing as the world has become, it’s easy to lose sight of important issues. We need to refocus on educating the public and our own colleagues about the precious freedom that has been the foundation of American journalism and a cornerstone of American democracy. We need to address this in seminars, conventions, conferences, classrooms, blogs, journals, list-servs and private conversations. Journalists can’t be confused or misinformed about the importance of freedom of the press.

We face the most secretive administration of our lifetime, perhaps the most secretive in American history. The press plays an essential role in informing the public about the actions of the government (now and in the future when more liberal administrations could commit similar abuses). Reporters should be more discriminating in granting confidentiality. But if they can’t protect confidentiality when they grant it, the watchdog function of the free press will be seriously curtailed.

This case is not about protecting Judith Miller or her rat. It’s about protecting the would-be Deep Throat who now wonders if he or she dare blow the whistle to a reporter.

sbuttry@americanpressinstitute.org

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