February 20, 2005

Fisking Kinsley... er... sort of

I went searching something to fisk and went to my favorite target, Michael Kinsley. Unfortunately, Michael has a well-reasoned argument with himself, in today's column, about when and why journalists should be allowed to protect an anonymous source when protecting that source's identity might impede the investigation of a crime.
His WaPo article, titled Privilege and Presumption, is HERE (registration required).

I love his opening line:

American democracy is a conspiracy of special interests against the general interest, but every special interest thinks that it is the general interest.

He gives an example of a special interest (farm subsidies) and then compares how journalists' belief in the nobility of their profession is no different than a farmer's belief in the nobility of farming and, thus, journalist's feel equally entitled to special treatment by the law and by public policy.
That is why, even at this low point in public esteem, many journalists are unembarrassed to assert that they are above the law.

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.

If Miller and Cooper were out of bounds in promising anonymity to their sources, Kinsley ponders, shouldn't the law in such matters be made clear? Kinsley is upset not at Miller and Cooper for arrogantly placing themselves above the law, but for the principle of "journalistic privilege" not being a part of the law in criminal cases.

The fact that Miller and Cooper believe in Reporter-Source Privilege, so much so that they might be willing to go to jail rather than identify their sources, is laudable:

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.

But, he writes, in any balanced approach, there are a prices to paid:
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.

On the other hand, he follows with:
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?

Kinsley then offers an "answer" to the difference between lawyers and ministers one the one hand, and journalists on the other. But, I don't wanna get sued for copyright infringement by posting the entire essence of the column. Ye must go read the rest.

While Kinsley supports recognizing, in Law, a balanced, reasonable "journalist-source privilege", he laments the arrogance by which it's being requested -- or, perhaps, the arrogance with which it needs to be requested in these ol' newfangled times. Noting that journalists aren't held in very high regard these days:

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.

Read the whole thing. His last paragraph sums up - as if he's shaking his head - just how he sees the Miller-Cooper conundrum as it's being played out. Hat-tip to Michael Kinsley.

Posted by Tuning Spork at February 20, 2005 07:54 PM
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