More on Judith Miller Controversy

[brettdale]

More on Judith Miller Controversy
and Treasongate


http://www.conyersblog.us

Once again, my friend Arianna weighs in with some more colorful detail about rumors surrounding the Miller controversy. And, again, I have to say that I have no independent confirmation of the details.

That said, Arianna does touch on an important public policy issue -- the current lobbying for a "journalistic shield" to protect reporters from revealing sources and thereby presumably avert other reporters from suffering the fate of Ms. Miller. The legislative proposals have a surface appeal to me. I have long been a purist when it comes to protecting the First Amendment and the rights of the press. However, I have been reluctant to support the proposals before Congress. Why?

[snot]

1. There is no reason we can't distinguish

Between confidentiality to protect those who are blowing the whistle for a lawful, helpful purpose, vs. those who are leaking in order to further their own interests regardless of the potential harm to others.

The law protects confidentiality in a variety of kinds of circumstances, subject to a variety of reasonable limitations--it is NOT an all-or-nothing deal.

I'm not an expert in this area, but I believe, e.g., that the law generally recognizes the confidentiality of what a patient tells a doctor about PAST crimes; but if a patient says enough to a doctor indicates a real likelihood of FUTURE harm to a third party, the doctor must inform someone to try to prevent the harm.

As in so many areas involving fundamental rights, the law can and should attempt to balance the competing considerations and come up with guidelines that are roughly consistent with the real harms and benefits at stake. It may still be crude, but it's still better than an "all or nothing" approach.

E.g., the law frequently takes into account the intentions of the parties--did they intend to kill someone, or was it an accident, or were they criminally reckless in some way? Very different penalties apply.

If I were a legislator trying to address the Miller case, I'd try to craft a law that recognizes a journalistic privilege in most cases, but that provides a procedure whereby a court of law can examine whether the source deserves protection because the source was trying to do something helpful, vs. a source that does not deserve protection because s/he's basically trying to do something that will be harmful without serving any worthwhile purpose. Once you have a final ruling from a court regarding the that issue, if the courts determined that the source did not deserve protection, then the journalist could be required to testify.

It should be crafted so that the balance weighs in favor of protecting journalists and their sources. And the emphasis should be on the underlying or ultimate, substantive effects. I.e., the law, properly crafted, should focus less on whether the whistleblower/leaker violated any rules in making the disclosure, and more on, what were the factual consequences, and was the leaker trying to remedy a wrong, or perpetuate one?

In Miller's case, I'm willing to bet it's her own a-- she's protecting.

If there are any journalists out there, I'd be interested in what they think.

[H2O Man]

2. The rights of a free press

are not damaged by this case. The fact that they have responsibilities to society should not become a crisis.