The recent revelations and speculation about Karl Rove’s possible role in outing Valerie Palme have eclipsed, for the general public at least, what has come to be called the ‘Judith Miller issue’ despite the fact that Miller is serving a jail sentence for refusing to name her source.
The recent revelations and speculation about Karl Rove’s possible role in “outing” Valerie Palme have eclipsed, for the general public at least, what has come to be called the “Judith Miller issue”—despite the fact that Miller is serving a jail sentence for refusing to name her source.
That’s too bad, because the controversy can tell us a lot about what is wrong with democratic discourse and policy debate on both sides of the ideological divide.
For those who have been in a cave somewhere, let me recap: Miller, a New York Times reporter, spoke to a thus-far unidentified person in the White House, who presumably told her something highly pertinent to the investigation of Palme leak being conducted by the Special Prosecutor. (Interestingly, she did not write a story based on that discussion.) When questioned, she refused to disclose the identity of her source. An appellate court said she had to testify, and the Supreme Court refused to overturn that decision.
As she marched off to jail for her convictions, journalists (aka members of the “liberal media”) hailed her as a martyr. They pointed out—correctly—that whistleblowers are highly unlikely to tell the press about government wrongdoing without a guarantee of confidentiality. Comparisons to Deep Throat were frequent. Any suggestion that she should comply evoked dire warnings about the imminent emasculation of the media.
Those arguing that she should testify were equally dogmatic, mounting a classically conservative “law and order” argument. They asserted—also correctly—that being a reporter is not some sort of automatic “pass” entitling the press to ignore rules that apply to the rest of us.
What Americans seem increasingly to forget is the difference between principles, which are often quite straightforward, and the more complicated application of those principles to specific sets of facts. We have freedom of speech, for example, and freedom of religion. Simple. But free speech does not, in the classic example, include the right to falsely shout fire in a crowded theater. Freedom of religion does not include the right to sacrifice small children to our particular gods.
People of good will often disagree about how a given principle should apply—on where to draw the line—in specific situations. Failure to acknowledge the difficulty of that line-drawing process leads to the ideological posturing that often seems to have replaced actual discussion.
Should journalists have a privilege to keep the names of anonymous whistleblowers confidential? Absolutely—when the source is a genuine whistleblower, someone who is sharing evidence about wrongful or illegal activities. But what if a reporter, wittingly or unwittingly, is being used by the source to actually commit the wrongful act? Isn’t that a different situation? I don’t know whether Judith Miller’s case is the former or the latter, but the distinction is important.
A blanket privilege allows misuse of the press for personal or partisan advantage; too restrictive a privilege undermines government accountability.
As I tell my students, often the correct answer to a question is: it depends.