For once, I’ve got to hand it to the New York Times.
When I read that Times reporter Judith Miller had gone to jail rather than disclose the name of a confidential source at the Central Intelligence Agency, I expected to read a diatribe on the editorial pages of her employer complaining that journalists should have the same legal privileges not to reveal confidential information that physicians and members of the clergy enjoy. The idea is that the First Amendment’ guarantee of a free press is supposed to be at stake here, the usual argument goes, so reporters should never have to go to jail for what they write, no matter what the law says–and the law doesn’t provide for journalist-source confidentiality.
But this morning’s Times editorial doesn’t make that argument:
“Some people — including, sadly, some of our colleagues in the news media — have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, ‘I have no such right and I seek none.'”
What Miller is doing, says the Times, is simply engaging in civil disobedience. Of course, as with all civil disobedience, you have to take the consequences–which can include jail–and not all the causes in which civil disobedience has been invoked have been especially noble. I don’t want to get into the merits of the underlying dispute that has provoked Miller’s jailing: the release of CIA operative Valerie Plame’s name to syndicated columnist Robert Novak, leading Plame’s loudmouth, Bush-bashing former State Department operative-husband James. C. Wilson IV to tag the release as the handiwork of the nefarious Karl Rove. But I hope that if I as a journalist were ever called upon to betray a confidential source, I’d choose jail, too.
Of course, the New York Times, being the New York Times, is now agitating for Congress to pass a “shield law” that would give journalists the confidentiality privilege of doctors and clergymen. That would be a mistake, and not just because there’s no good societal reason to give Dan Rather the same status as a priest hearing a confession or a physician rendering medical treatment.
It’s because journalists simply aren’t–and we never should be–a privileged class entitled to special treatment unavailable to members of the public. When the First Amendment was ratified, there were no such thing as professional journalists–there were only members of the public who happened to own printing presses, which they used to disseminate broadsides criticizing the king, or, after the Revolution, whatever party happened to be in power. Anyone could be a journalist. We’re now witnessing a backlash against those little guys–nowadays we call them bloggers–by our elite mainstream press corps, which would like to draw a bright line between the “real journalists”–themselves–and the pajama-clad unwashed sitting at their home computers. You can bet your bottom dollar that any shield law would buff that line.
So count Judith Miller’s jailing, and the refusal of the courts to show her any favoritism, as a victory of sorts for the blogosphere–at least for now.