Right Principle, Wrong Context

By Michael Kinsley
Sunday, July 10, 2005

When Robert D. Novak first reported that people in the Bush White House had identified Valerie Plame as an undercover CIA operative, the New York Times reacted with high dudgeon. Plame is married to Joseph Wilson, a former State Department official who went to Niger in search of evidence of Iraq's effort to assemble weapons of mass destruction. He then wrote (in the Times) that he couldn't find much, and outing Wilson's wife appeared to be the Bush administration's revenge.

The New York Times editorialized: "If someone at the White House . . . revealed the name of a CIA operative to . . . stifle dissent over Iraq policy, that in itself would be a serious assault on free speech and an egregious abuse of power." It called Bush's "blanket denial" a "cover-up." It looks as if what the Times found so alarming is exactly what happened. The cover-up is crumbling. Wrongdoers may be exposed and punished. All no thanks to the New York Times.

The noble principle for which Times reporter Judith Miller sits in jail is the right of journalists to participate in efforts to stifle dissent, censor free speech, abuse power and then cover it all up. No? Well, not exactly. Secret sources can be whistle-blowers themselves, helping anonymously to expose corruption. That is why journalists say that anonymous sources are essential to freedom and democracy. But that is not the current case, and it may not even be the case most of the time.

In a ringing and utterly uncompromising editorial Friday, the New York Times noted correctly that even its earlier editorials about the need to expose and punish "an egregious abuse of power" had warned against any "attempt to compel journalists to reveal their sources." But these directives are irreconcilable. The "egregious abuse of power" was leaking secret information to journalists. The leaker has a Fifth Amendment right not to testify. If journalists have a First Amendment right not to testify, then the "egregious abuse of power" cannot be exposed or punished.

This isn't about the press's right to publish information. It is about a right to keep information secret. Even the Times acknowledges that sometimes the government's right to secrecy is more important (wartime troop movements is its single, melodramatic example). And even the federal government recognizes the social utility of a vigorous press -- going out of its way to avoid demanding trial evidence from journalists in most circumstances. From this, it is easy enough to imagine a compromise, ideally reflected in a journalistic shield law like that in most states.

One problem in getting from here to such a compromise was that Judith Miller, Matt Cooper and the others were being asked to break promises of confidentiality they had already made. That is hard. If journalists routinely make such promises and routinely are forced to break them, this will indeed create a general "chilling effect" on leaks. But the real issue is whether the promises should have been made. Under a clear set of rules, the "chilling effect" would be limited -- not perfectly, but primarily -- to leaks that ought to be chilled and to promises of anonymity that should not be made.

A bigger problem is that no reasonable compromise would give journalists victory in the current dispute, in which the leak is not just evidence of a crime but the crime itself. Some journalistic voices (for example, The Post's editorial page) have decided the crime at issue isn't so egregious after all. The law against outing CIA agents is tricky, and the outing of Valerie Plame may not have broken it. This would be convenient, but it comes closer to illustrating than obviating the dilemma. Maybe, in any given case, no law has been broken, or the broken law isn't important, or there are other equally good ways to enforce it, or giving journalists immunity merely makes enforcing the law difficult rather than impossible. But what if not?

The biggest problem in the way of a compromise is that journalists who share the philosophy of the Times assert the right to decide unilaterally. Even if they acknowledge the possibility that their needs don't always trump everybody else's, they insist that their judgment does trump everybody else's.

Norman Pearlstine, editor in chief of Time Inc. magazines, made the essential point in agreeing to turn over Cooper's notes after the Supreme Court declined to review the case. He noted that even Richard Nixon, who claimed a constitutional right to protect the Watergate tapes, turned them over when the high court said he had to.

The Times's Thursday editorial asserts that this is a matter of "civil disobedience." In societies that are not democracies or lack a legitimate judicial system, nonviolent civil disobedience is an admirably restrained method of attempting political change. In societies where laws are democratically enacted and fairly enforced, for the most part, purposely breaking them needs to be justified by some enormous injustice.

The New York Times is an influential newspaper owned by a large corporation. It is claiming an exemption from one of the duties of citizenship. It has hired some of America's best lawyers to pursue this claim. And then, when the claim has been rejected, it encourages its employees to defy the courts and break the law. If that is civil disobedience, then almost any law anyone does not care for is up for grabs.

Michael Kinsley is editorial and opinion editor of the Los Angeles Times. This is his opinion, not that of the Los Angeles Times.

© 2005 The Washington Post Company