Are reporters above the law? Should they be?
We have lately been running laps around this block in connection with the 2005 leak of the NSA terrorist surveillance program and the 2003 exposure of Valerie Plame’s CIA status. The first of these two episodes did not land any reporters into trouble, but a federal grand jury is still hearing evidence in the case and there was movement in it last month. The second led to Judith Miller of the New York Times being put in the slammer by a court. There she remained for 85 days, until she disgorged the identity of her confidential source: Scooter Libby.
Another issue is now compelling us to running around the block yet again: the anthrax attacks of 2001 that killed five people. Steven J. Hatfill, the bioterrorism expert who was named in the media as a suspect, has brought a civil suit against the government for violating his rights under the Privacy Act. In order to demonstrate how the government trampled on his privacy, Hatfill wants to obtain the notes of journalists who received disparaging information about him from confidential sources in the FBI and Justice Department.
U.S. District Judge Reggie B. Walton, the same judge who presided over the trial of Libby, is hearing the matter. Yesterday, he dealt a blow to the five reporters whose notes are being sought. “The names of the sources are central to Dr. Hatfill’s case,” he wrote in a 31-page opinion.
Is this good news or bad? Attorneys and lobbyists for the news media argue that forcing a breach of confidentiality in this way will impair the ability of reporters to gather the news. Government officials are unlikely to tell reporters what they know, goes the argument, if their identities might one day be disclosed.
True enough, but the law is the law. Journalists cannot merely declare themselves above it, whether they are disclosing U.S. counterterrorism programs or besmirching the reputation of an innocent individual. (Hatfill was never charged with any crime but in 2002 was named by Attorney General John Ashcroft as a “person of interest” to the investigation.) The press, of course, does enjoy First Amendment protection, but this is hardly unlimited and does not constitute a license to do or say as one pleases regardless of the consequences, as so many journalists seem to believe.
If members of press think we are ill-served by the laws as they stand, they can lobby to change them. A bill to do just that and establish a “shield” for journalists is currently before the U.S. House of Representatives. But successive congresses have considered such a bill only to reject it. I have argued, on a number of grounds, that such a bill is a bad idea whose time has not arrived. Thus far the American people, acting through their elected representatives, would seem to concur. Until such a law is passed, journalists are obliged to follow the rules as they stand or, as Judith Miller chose to do, defy the courts, which means defying the duly passed laws of the United States and taking the consequences.
