New York Times reporter Judith Miller has been held in contempt of court for her refusal to identify to a grand jury the source of who leaked the identity of Valerie Plame, an undercover CIA agent. Press coverage of the story has focused heavily on the prospect that punishing Miller might have the unfortunate effect of deterring future leaks:
The case has caused shudders among some First Amendment experts who fear the ruling by federal district Judge Thomas Hogan in Washington could shut down the flow of information from government whistle-blowers and other confidential sources who risk losing their jobs if identified.
If allowed to stand, the contempt citations “would dramatically affect the ability of the public to get information through reporters,” said Jack Doppelt, an associate professor at Northwestern University’s Medill School of Journalism. “It’s terrible.”
I can certainly understand this fear — and why it would seem particularly important to reporters — but I find it hard to assess without knowing the particulars. In particular, is the alleged problem more the substantive criminal law, or the apparent absence (at least in the grand jury context) of a reporter’s privilege? Proponents of the argument may believe that the federal law making it a crime to disclose classified information is a bad idea, at least when that disclosure is made to a reporter. Judge Hogan’s decision helps enforce the existing law; it deters federal officials from committing the crime of disclosing classified information. If that law is a good law, then deterring people from violating it would seem to be a strength of Judge Hogan’s ruling, not a weakness.
Alternatively, critics may believe that, even assuming the law against disclosing classified information is a good law, Judge Hogan’s ruling might deter societally useful disclosures when disclosures would not violate that law. I have chosen to remain rationally ignorant about the details of Judge Hogan’s ruling, but it may be that its rationale would apply more broadly than criminal investigations. Or perhaps there is reason to fear that prosecutors will abuse their powers to bring reporters before the grand jury, forcing reporters to disclose their sources even when no crime has been committed. (I don’t know how likely that is; I’m just mentioning it as a possibility.)
It’s probably too much to expect reporters to go into these details in the course of reporting new stories. Still, it would be good to know whether critics object primarily to the scope of the substantive criminal law, the scope of Hogan’s ruling against a reporter’s privilege, or something else.
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