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Michael Kinsley

Privilege and Presumption

By Michael Kinsley
Sunday, February 20, 2005; Page B07

American democracy is a conspiracy of special interests against the general interest, but every special interest thinks that it is the general interest. Journalists often see this firsthand. They talk to a farmer about farm price supports and report back amazed at the ferocity and self-righteousness of the farmer's views. A farmer really believes that large government checks to farmers make America a better place, and can get very annoyed if you suggest otherwise.

How can they believe that their special interest in receiving large checks from the general taxpayer coincides with the general taxpayer's interest? Partly it's self-deception. Partly, though, it is self-selection. Farmers believe in the nobility of farming because people who believe in the nobility of farming become farmers.

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And people who believe in journalism become journalists. Belief in journalism is not widespread in the general population these days. People think journalists are biased, that they make things up, that they are arrogant, self-involved and self-important. But the folks who become journalists (including me) are more likely to regard journalism as a noble calling that serves the nation, its values and the world. That is why, even at this low point in public esteem, many journalists are unembarrassed to assert that they are above the law.

That is essentially what the journalistic profession is claiming in the current controversy over the special prosecutor's investigation of White House leaks. Judith Miller of the New York Times and Matthew Cooper of Time have refused to testify about their conversations with government officials that might have concerned who leaked the identity of an undercover intelligence agent to columnist Robert Novak. Last week a federal appeals court ruling upheld a lower-court order that Miller and Cooper must testify or go to jail.

That is a travesty. These two public-spirited journalists promised anonymity to sources at a time when the law about "journalists' privilege" was unclear. Having made that promise, they feel obligated to keep it. If they shouldn't have made that promise, society should have sent them a clearer message to that effect. The message is still a muddle. Why these two, who never published the secret name, and not others, including some who did? Before we start jailing journalists for keeping promises, we need to decide when such a promise should be made.

Journalists are claiming to be above the law in two senses. First, there are laws requiring citizens to supply information under oath. Journalists are saying we get to decide whether and when these laws apply to us. Second, testimonial immunity for journalists can make it difficult or impossible to enforce other laws.

The Miller-Cooper situation is an extreme example of the second category. The leak wasn't merely connected to the crime. The leak was the crime. "Outing" an intelligence agent is illegal. The law is aimed at leakers, not recipients of leaks, so the journalist is already effectively immune. Because a leaker has the right against self-incrimination and because people rarely leak official secrets in front of an audience, excusing the journalist from testifying will very likely scuttle any prosecution of the leaker. That is the whole idea of journalists' privilege: to encourage insiders at powerful institutions to leak information to journalists.

So what? Lawyers and ministers are allowed to keep their secrets, even if that lets some criminals off the hook. What is so unreasonable about a similar privilege for journalists? Answer: these other privileges are about individual rights. The Constitution gives you the right to observe your religion and the right to a lawyer if you're in legal trouble. Those rights would be nearly worthless if your lawyer or pastor could be forced to reveal what you said in confidence.

The constitutional freedom of the press does not depend on giving journalists immunity. The case for journalists' privilege is that society in general benefits from a vigorous investigative press, and anonymous sources are essential to that. When individual rights come at a cost to society as a whole, it is a cost we are proud to pay -- within reason. But when both sides of the equation are the interests of society generally, it is only sensible to weigh them against each other.

Very often the social benefit of encouraging whistleblowers would win such a balancing contest. But journalists mistakenly see the privilege as their right and refuse to contemplate such a balance. Or they assert the authority to weigh the considerations themselves, which seems even more arrogant.

Is it in society's interest to encourage people to give information secretly to journalists? Yes, most of the time, it probably is. But how can leaks be considered desirable in the context of criminal investigations of those same leaks? If the leaks are bad, why should we encourage them? If they are good, why are we prosecuting them? And in a democratic society, shouldn't that good-or-bad decision be made by the people, through their government, rather than by a journalist taking the law into his or her own hands?

Asking the government to protect journalists who protect leakers who expose what the government wants to keep secret amounts to asking democracy to institutionalize the assumption that it can be wrong. A great and stable democracy like ours can and should do this. But it is a lot to ask, and it might be asked with a bit more humility.

The writer is editorial and opinion editor of the Los Angeles Times.

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