Protecting the Privilege   

The argument that shielding sources’ identities serves the “public interest” actually hurts press freedom.

After a series of unsuccessful court battles culminating in her imprisonment, New York Times reporter Judith Miller finally walked out of jail at the end of September. She assured us that after 85 days behind bars, she was satisfied that her source had voluntarily released her from her promise to keep his identity confidential.

Her testimony before the grand jury investigating the leak of CIA operative Valerie Plame's identity apparently was exactly what Special Prosecutor Patrick Fitzgerald had been waiting for, because just about a month later, he wrapped up his two-year investigation and announced the indictment of I. Lewis "Scooter" Libby Jr. It seemed like her testimony served the public interest.

Most journalists cringe at the prospect of one of their own being forced to turn state's evidence. But in this case, many of them thought it was justified. After all, revealing Plame's identity might have been a crime. Even if it wasn't, it certainly wasn't a disclosure made at great personal risk by an insider who wanted to blow the whistle on government shenanigans. Instead, it looked like a nasty political vendetta, launched by a secrecy-obsessed White House that wouldn't tolerate any criticism of its intelligence-gathering or its rationale for war. The Miller case illustrates everything that is supposed to be wrong with Washington journalism: Shadowy sources extort promises of anonymity from compliant reporters, with the goal of advancing an agenda behind a cloak of confidentiality. Protecting that surely wasn't in the public interest.

And Fitzgerald himself said that reporters should be subpoenaed only in "an extraordinary case," when what he called "the transaction" between the journalist and the source meant the journalist was an "eyewitness to the crime" — in other words, only when it's in the public interest.

In this case, the indictment alleges perjury, obstruction of justice and making false statements to the FBI, citing reporters as the basis for the government's charges that Libby is a liar. There are no claims — at least so far — that his supposed disclosure of Plame's identity was a crime. And the journalists presumably weren't present when he allegedly lied to the authorities about the conversations, so they were not "eyewitnesses" to that "crime." But their testimony would still be in the public interest, right?

Even if Fitzgerald is finished with the reporters, though, Libby apparently is not. One of his lawyers told the federal judge at the arraignment in November that "First Amendment issues" were likely to delay the trial, a signal that now the defense would be coming after the journalists. Instead of the government demanding evidence in order to indict the source, the source will demand that the journalists either provide testimony to assist in his defense, or appear in court so he can confront them and accuse them of perjury — both rights guaranteed by the Sixth Amendment. That's clearly in the public interest.

In the background, we hear the argument that the reporter's privilege serves the public interest. But it is a challenge to define exactly what interest is served in a case like this, or to balance these competing interests to determine which should triumph. Most testimonial privileges — doctor-patient, attorney-client — exist not to protect the professional, but to protect the client or the patient. We want to encourage people to be candid with their lawyers or physicians, and confidentiality is the only way to ensure that. But if the patient or client decides to waive the privilege, then the professional can be compelled to disclose the entire conversation. That's in the public interest.

The reporter's privilege is different. Journalists gather information from a variety of sources, some of them unsavory and operating with dubious motives that may be contrary to the public interest. Certainly the source will benefit if a reporter is allowed to honor a promise to keep disclosures confidential. But the benefit to society of protecting some sources may be harder to discern. In fact, several courts have ruled that the privilege belongs to the reporter, not the source. It doesn't matter whether the source has signed a waiver, because the privilege isn't the source's to give up. Only the reporter can do that. It's an essential part of what makes journalists independent, and what keeps the press free.

By basing the reporter's privilege on the argument that it promotes the public interest, the press runs the risk that the public will disagree. The public will jettison the journalist's privilege in a heartbeat if it seems expedient or necessary to serve some "higher" public interest. So the press needs to draw the line. Just as we don't limit the attorney-client privilege only to criminal defendants who we think are innocent, we can't recognize the reporter's privilege only in those cases that are perceived as serving the "public interest." If the privilege is to mean anything — if the First Amendment is to mean anything — then we must have the courage to insist on a principle. The privilege must be inviolable.

Even if it's not in the "public interest."