Lessons in the Judith Miller Case

Newsrooms are in a state of high dudgeon over the jailing of a New York Times reporter.

Reporter Judith Miller refused to reveal her sources to a grand jury and has been jailed for contempt. Many journalists at NPR and other news organizations are shocked that a reporter could be punished in this way.

The grand jury is looking into how a CIA agent was named in a column written by Robert Novak. It's a complex and often confusing story, and some important questions remain unanswered:

• Why was Judith Miller asked to reveal her sources even though she never wrote a story on the topic?

• Why has Robert Novak refused to reveal either his source or whether he has even given evidence to the grand jury?

• Could the source be a member of the White House staff who "outed" the CIA agent because her diplomat-husband was openly opposed to U.S. policy toward Iraq?

A lot of questions for which, presumably, there will eventually be answers.

More immediately, journalists should be asking themselves some questions. There is a strong "there but for the grace of God go I" quality to this strange and convoluted story.

No Public Appreciation for Journalism?

NPR's Daniel Schorr said on All Things Considered (July 6) that journalists seem have fallen on hard times. He thinks we should be granted the same constitutional rights and responsibilities as others in society:

Confidentiality is observed in doctor-patient relations, in priest-penitent relations and, yes, lawyer-client relations. If reporters do not in equal measure enjoy a First Amendment privilege to protect their sources, it is because the public does not in equal measure value their services.

According to recent polls, Dan has it right; there has been a worsening of public regard toward journalists and journalism. More ominously, Americans between the ages of 18 and 35 believe that the government should actually be allowed to censor the media in time of war.

While "shield laws" exist in most states to protect journalists who wish to protect their sources, no such federal law exists. Since jurisdiction at the state level never includes issues of national security and other areas that may involve the federal government, a federal shield law would provide significant protection for journalists. But given the general suspicion of the media among Americans, it seems unlikely that Congress will soon leap to the defense of journalistic privilege by passing a federal shield law.

The Ethical Issues

Journalists, courts and Congress will mull the legal implications of the Judith Miller case for the foreseeable future. For now, it might be useful to look at some of the ethical implications that journalists must consider.

• Are there ever any instances where it would be ethical for a journalist to go back on a promise to protect a source?

• What if, by protecting a source, a crime goes unpunished or a crime may be committed?

• What if a source turns out to be less than he or she first appeared... and in fact, the source was using the reporter for personal advantage?

• If the journalist once promised confidentiality but then saw that the source was benefiting from the story written by the journalist, does that initial sense of obligation still hold?

Promises You Can't Keep

I confess that in my own time as a reporter, I was used on a few occasions by sources that wished to plant a story, float a trial balloon, or throw the media off the scent. I think most reporters have experienced these uncomfortable situations.

Twenty-five years ago, I was a television producer on a story where I arranged an interview with a politician who said he would talk on camera, providing the story wasn't used until sometime in the future. The story involved a political strategy that could have been embarrassing for some in the government. But the time wasn't ripe for the politician, and he asked that the story not air until everything was in place. Naively, I agreed and only realized later that he was using me for his own political advantage.

I had entered into a promise that wasn't mine to give. When I told my editor that we had a scoop that we couldn't use, he (correctly in my opinion) brushed aside my promise and ran the footage that night.

My source never spoke to me again. But I never made a promise like that again, either.

Promises You Shouldn't Keep

Here's another possible scenario with other ethical implications:

• What should a journalist do if it becomes clear that the source lied on a matter that affects the public good?

• Should the journalist be ethically obligated to expose the source and the journalist's connection to that source?

• Are there any circumstances when a journalist should go back on his or her word to protect the identity of the source?

This is a morally and journalistically ambiguous area where clear lines are easily blurred by competitive, political and ethical pressures.

A federal shield law might introduce other complications: I can imagine a scenario in which a journalist might end up in court being sued by a source for breach of promise, if the journalist felt ethically compelled to identify a source who had been promised anonymity.

So, are there any circumstances where a journalist should give up a source? I think the answer must -- on rare occasions -- be yes. In either case -- protecting a source or revealing a source -- is not without its dangers.

But it is too soon to say whether the Judith Miller case is one of those instances in which a source should be revealed.