Yesterday’s indictment of Lewis “Scooter” Libby could prove to be a dark day for any notion that reporters have a right to protect their confidential sources.
That right — never fully recognized, although the Supreme Court’s Branzburg v. Hayes (1972) decision led to some limited protections — had already been under assault as never before. Jim Taricani of WJAR-TV (Channel 10) in Providence was sentenced to house arrest last year for refusing to divulge who had given him an undercover FBI videotape of a city official accepting a bribe. And, of course, Judith Miller of the New York Times recently served 85 days in jail rather than talk about her conversations with Libby.
The problem now is that journalists, having already identified Libby as the alleged bad guy in the Valerie Plame investigation, will become the star witnesses against Libby if and when the case goes to trial. Bob Zelnick of Boston University raised this point last night on “Beat the Press,” the weekly media roundtable that’s part of WGBH-TV/Channel 2’s “Greater Boston.” Zelnick noted that, inevitably, Miller, NBC’s Tim Russert and Time magazine’s Matthew Cooper will all have to take the stand and testify against their once-confidential source — a pretty unappetizing prospect.
This morning, Katharine Seelye and Adam Liptak expand on that in the Times. Some excerpts:
SEELYE AND LIPTAK: “This is exactly the thing,” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota, “that journalists fear most – that they will become an investigative arm of the government and be forced to testify against the sources they’ve cultivated.”
Floyd Abrams, the First Amendment lawyer, said he could not recall a previous case that depended so heavily on testimony by reporters or in which reporters could be so exposed.
“It’s troubling that reporters are being asked to play so central a role, but even more troubling that reporters may be obliged to play the role of testifying against someone that they had promised confidentiality to,” said Mr. Abrams, who has at various times represented The New York Times, Time, Ms. Miller and Mr. Cooper.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the case was setting a dangerous precedent. “Reading the indictment makes my blood run cold,” she said. “This whole thing hinges on Russert.”
Indeed, special prosecutor Patrick Fitzgerald might not even have a case were it not for Libby’s alleged lies about his exchange with Russert. Josh Marshall points to a National Review Online post that shows just how solid and serious the Russert matter is.
This has always been a lousy case for anyone who thinks there ought to be at least a limited reporter’s privilege. Washington reporters, compromised by the ways of Washington, claimed a reporter’s privilege not to protect a whistleblower or to expose government corruption (as Taricani did), but, rather, to maintain their promise of anonymity to a source or sources who may have outed an undercover CIA agent and thus undermined national security. I understand why they had to do that, but there’s nevertheless something unclean about it.
The media lovefest enveloping Fitzgerald is unwarranted. Fitzgerald does come across as admirably apolitical, a rare straight-shooter. But he also took advantage of the tattered fabric that was the reporter’s privilege and blasted an enormous hole right through it.
Short of a national shield law — something that seems unlikely to pass — the reporter’s privilege has now gone from tenuous to nonexistent. Perhaps some good will come out of this: A source will think very, very hard before he uses a reporter’s promise of anonymity to engage in criminal behavior.
More likely, though, Fitzgerald’s crusade will make it harder for journalists — and journalism — to expose the truth.