On shields

I don’t have a simple, 1-D opinion about what Judith Miller and Norman Pearlstine did in the Plame case, nor about shield laws.

I’ll likely be drummed out of the corps of journalism (if I haven’t been already and, if I have, what the hell, I’m not a joiner) but I’ve come to see that Time Inc. Editor in Chief Pearlstine did the hard thing, probably the right thing. The easy thing for him to do would have been to defy the court, stand by the journalistic orthodoxy, refuse to hand over the subpoened documents, lump fines that wouldn’t mean diddly to Time Warner, and go into the J-Hall of Fame on the back of his jailed reporter, Matthew Cooper. The hard thing to do was to defy the orthodoxy and conclude that, indeed, news organizations are not above the law. If the law is an ass, then change the law; that’s what we do in this country.

Meanwhile, Judith Miller is taking the brave move of protecting her source and I have to respect that even if others do not.

And I am relieved for Matthew Cooper, getting his get-out-of-jail card at the last minute in the form of a dispensation to testify from his source. To quote a more charitable blog than the last one linked:

The First Amendment may suffer for Cooper’s decision, but telling your six year old son that you may not come back for 180 days to uphold press freedoms not granted under the scope of a federal investigation makes the decision easy.

I’ve confessed that I’m not sure I would have the courage to go to jail and say goodbye to my children over professional privilege; I might be tempted to open an ice-cream stand instead.

As for shield laws: I’ll repeat what I said before:

I firmly believe that anyone and everyone can do journalism; I am a blog triumphalist, a proponent of citizens’ media. So there should not be a special privilege for people who are somehow officially accredited as journalists — not only because that excludes citizens who do journalism but also because it puts those credentialed at risk of having their credentials pulled by authorities. We do not want to find ourselves in that position.

Should there be a privilege? When everyone has it, there is also the danger that someone will claim privilege to hide criminal behavior: Someone will claim via a blog that they are doing journalism and have privilege and thus refuse to reveal a source of what they wrote in civil or criminal matters.

This had led many to say that privilege should not extend to criminal activities: that it is an obligation of citizens who know of criminal activity to reveal that. If that were the standard, then Miller would still not have privilege.

Frankly, I’m not sure where I come down. Ying-yangs:

I do believe in the necessity of privilege to enable the watchdogging of the powerful.

At the same time, I think we have grossly abused confidential sources in media and perhaps ruined privilege in the process.

I do think that if journalists have privilege then all citizens have privilege when they practice journalism, which now anyone can do: Anyone can publish.

I also believe there need to be limits — for example, regarding criminal activity. But then that, too, defangs privilege.

This onion has more layers:

On the one hand, not having protection for confidential sources means that they will be less likely to blow the whistle on power and that is bad for democracy.

Let’s not forget that the prevailing issue here isn’t just journalistic secrecy but government secrecy and what should and should not be kept from us in our alleged interest. And who’s going to determine what that interest is?

On the other hand, for journalists to claim “privilege” is for them to separate themselves from the public they serve and we’ve had too much of that. Journalists used to be citizens with a press. But now all citizens can have the press. Now we all can be journalists with sources and secrets and the public’s interest at heart. So where does that leave us?

I said before — and suffered the scorn of one particularly snooty, nasty, old-fashioned journalist as a result — that if Watergate happened today, Deep Throat would get a blog. That was seen as another moment of blog triumphalism. But I already have more than enough of those.

What this really means is that the state of anonymity and secrets changes. Now someone with a secret to reveal can do it and does not need to hide behind a reporter’s shield to do it — and, in many cases, cannot hide behind that shield: The source can go to the internet and reveal the secret directly, and anonymously. The internet becomes the anonymizer that reporters have been. So then no one knows who the source is. And no one knows how credible the revelation of the secret is. But that is where we head when we kill the middlemen.

Of course, as we get to the stinky middle of this onion, we will find all kinds of smelly motives of people using people to push their own agendas. It’s not just about principle. It’s about politics.

: Full disclosures: I consult for About.com, owned by The New York Times Company. I know Norman Pearlstine and used to work for Time Inc. I used to work for Matt Cooper’s late father-in-law, Henry Grunwald.