Should journalists be held above the law? Yes, but ...

February 20, 2005|By Michael Kinsley

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.

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 are more likely to regard journalism as a noble calling that serves the nation, its values and the world. That's why many journalists are unembarrassed to assert that they are above the law.

That is essentially what the journalistic profession is claiming in the controversy over the special prosecutor's investigation of White House leaks. Judith Miller of The New York Times and Matt Cooper of Time have refused to testify about who may have leaked to them the identity of an undercover intelligence agent. Last week, a federal appeals court ruling upheld a lower-court order that Ms. Miller and Mr. 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 "journalist's privilege" was unclear. Having made that promise, they feel obligated to keep it.

Journalists are claiming to be above the law in two different senses. First, there are laws requiring citizens to supply information under oath. 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 effectively immune.

The whole idea of a journalist's privilege is to encourage insiders at powerful institutions to leak information to journalists.

The constitutional freedom of the press does not depend on giving journalists immunity. Nobody's individual right is at stake. The case for a 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 the current controversy exposes a conundrum: How can leaks be considered desirable in the context of a criminal investigation 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 do this, and should do it. But it is a lot to ask, and might be asked with a bit more humility.

Michael Kinsley is opinion page editor and editorial page editor of the Los Angeles Times, a Tribune Publishing newspaper. His column appears Sundays in The Sun.

Columnist Leonard Pitts Jr. will return next Sunday.

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