...the minority when it comes to the Judith Miller case, but, as so often in the past, I think the minority is right.
Here,
here,
here and
here (among other instances), they make their case.
I made my own case two weeks ago at The Next Hurrah and in a short-lived, cross-posted Diary here.
I hold no brief for Judith Miller or her execrable ilk. She's despicable. She has behaved far beyond the constraints of any ethical journalist on a number of occasions, as Grand Moff Texan details so well in his Diary. As an outright propagandist, Miller is a blight on journalism. Her role as a conduit for Administration warmongering and her active engagement in activity that she also covered in print without disclosing her own role is reprehensible.
However, shills have always been a plague on journalism, and anybody who thinks this started with the Bush Adminstration or that there was a golden Woodward-Bernstein age when journalistic ethics were practiced far and wide by big media are unfamiliar with the history of, say, Hearst, among others. Those of us who have served time in the alternative media did so for a reason. Seymour Hersh didn't find any willing takers for the My Lai massacre story - he had to let tiny Dispatch News Service sell it for $100 a pop. So the idea that it's a whole new media ballgame under the NeoImps is mistaken.
While people of goodwill certainly can (and obviously do) disagree sharply over whether "journalistic privilege" should include cases such as the one Miller has gone to the slam for, I am deeply, deeply disturbed with the myopic vengefulness I've seen displayed on various threads here and across left blogworld, particularly the large number of usually rational people taking a throw-the-baby-out-with-the-bath-water approach when it comes to shielding sources. One of the attitudes I've seen repeatedly expressed is that the media don't deserve the journalistic privilege of concealing sources because they've all done such a bad job of exposing government lies.
For the alternative media (including bloggers) to be protected, some lousy elements of the megamedia - including some of its worst actors - must also be protected, just as the Fourth Amendment protects crooks and honest people alike. We don't dismantle the Fourth simply because some people abuse its provisions.
I am not an absolutist on shielding journalists (professionals or citizen-journalists). But those who think it will be a simple matter to craft a law that allows individuals practicing journalism to protect the identities of "whistleblowers" while not protecting the identities of "propagandists" will have to do a better job of proving their case before I buy it. Because in the real world, those two are often inextricably entangled.
In the past, I've personally gotten tips and detailed information as well as documents from government employees who essentially represented factions within a government body and were working to bring down their bosses or another faction. They had their own agenda, which sometimes included getting themselves or somebody else into a better job. Hardly whistleblowers. Indeed, sometimes nasty pieces of work. I had to triple-check everything they told me. However, like cops, journalists often have to depend on unsavory snitches or go out of business. Thanks to information given me secretly by people I would never invite into my home - and my own research based on their information - I was able to write numerous stories that embarrassed local or state public officials and in a couple of cases led to their dismissal.
Everybody who has ever done investigative pieces can probably tell you a similar story. I'll cite details from a single example from my own experience.
A (now-dead) government employee passed along a copy of a classified study and accompanying memoranda regarding cancer studies of workers at the Rocky Flats Nuclear Weapons plant. This leak was a crime. And the leaker had an unrelated gripe against the boss, so the leak was motivated as much by that as any motive to give me data for the "public good."
What the documents showed - and I published - was that government officials and Rockwell International bosses were saying publicly that machinists at the plant actually had fewer cancers than a control sample of the general population. What was not said publicly, but what the documents leaked to me showed, was that brain cancers and testicular cancers were a couple of magnitudes higher than in the general population.
The law says the leaker should have been punished. Should I have been able to conceal the leaker's identity?
If you reply that shielding should depend on the circumstances, I'm all ears. But how exactly would you go about writing legislation that achieves the necessary hair-splitting? There is specific legislation in both the House and Senate. These are H.R. 581, which was sponsored by Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.); S. 340, introduced by Sen. Richard Lugar and S. 369, introduced by Sen. Christopher Dodd (D-Conn.) However, I'm not persuaded that any of these protect reporters (and thus leakers) as much as they need to be protected.
With all due respect to the rule of law and our esteemed judicial system, putting the responsibility for determining whether a journalist has met all the tests of professionalism in the hands of the courts in the absence of a federal shield law - especially a federal court system which has trended increasingly reactionary in the past 25 years - gives me the heebie-jeebies. This is far different than, say, a libel case in which a "malicious and reckless disregard" for the truth must be demonstrated to get a ruling for the complainant.
I know many of my political bedmates are unwilling to accept it, but while Miller has been and presumably continues to be a particularly nasty example of journalist-as-propagandist, she is acting as a journalist by refusing to reveal her source.
Admittedly, a source with an agenda. Not a whistleblower. A disinformationist. But I've yet to see a persuasive argument about how we can make clear legislatively the distinction between types of sources that can be concealed and the types that cannot. As the old lawyerly adage has it, "hard cases make bad law." I feel the same way about this as I feel about some guilty person who gets off because the cops violated the Fourth Amendment in obtaining evidence. I'd like to see him locked up - or for his criminal behavior to be stopped - but not at the risk that my rights will be lost in the process and my door will be kicked down some night.
It does not pain me to see Judith Miller in jail. What pains me is how many people with whom I agree on so many other issues see this as a victory for "our side" without fully contemplating how much this case is likely to weaken future protection for the media - good media and bad media alike.