This article is the third in a four-part series on the many ramifications of Judith Miller's saga. Parts I and II appeared in Tuesday's and yesterday's issues of the Daily and can be accessed at www.tuftsdaily.com.
"I think for a lot of reporters, especially in Washington, there's this overreliance on anonymous sources that's not good for journalism," says Slate.com's Jack Shafer. "If you go to smaller towns, reporters aren't allowed to let council members or city managers or the guy who runs the bus service to go off-the-record. So what they do is, the reporters use their power and authority to get these people to go on the record."
And sometimes, by asserting that power and authority, those small-town reporters are able to achieve the same results with national bigwigs. On July 9, 2004, then-Undersecretary of Defense Paul Wolfowitz visited an air force base and the chamber of commerce in Omaha, Nebraska. Before Wolfowitz opened up the floor to the several regional journalists present, his public affairs officer stepped in and announced that none of Wolfowitz's words could be attributed to him.
Instead, the officer said, the journalists should attribute what Wolfowitz said to a "senior Defense Department official."
"The four or five regional journalists who were there from Nebraska and Missouri newspapers said, 'Sorry, we can't do that. If we bring back that story, our editors won't allow it, because it's not news if we're attributing it that way,'" Shafer recounts. (He adds that "one of them pointed out that, seeing as there's only one senior administration official in all of f--king Nebraska, everybody's going to know who it is anyway.")
The reporters' stance worked, and an agreement was reached: Wolfowitz would speak on the record except when he was discussing issues of national security.
"So there, you had an example of editors influencing reporters and reporters responding to their editors' having set standards," Shafer says. "It succeeded in getting a really stupid government policy pushed aside - the journalists were able to do it by saying, 'Well, if you want those terms, we can't report the story - we'll go home.'"
But the journalists wouldn't have been able to do it had their editors not clearly and effectively communicated their publications' policies on anonymity to - and maintained clear, open lines of communication with-the reporters for whom they were responsible.
By all accounts - including the New York Times' own - this brand of functional reporter-editor relationship was a far cry from that between Miller and her editors at the Times.
"I think it was pretty clear Judy Miller ran all over the New York Times. I mean, she called herself Miss Run-Amok!" says the Boston Phoenix's Mark Jurkowitz, adding that the editors and executives at the paper did not ask Miller hard enough questions about who her sources were and why she was protecting them.
Newsweek Chief Political Correspondent Howard Fineman's take on Miller's relationship with her editors is similar to Jurkowitz's.
"[New York Times Editor] Bill Keller," Fineman says, "has since admitted that he didn't ask her enough questions; that he and others at the Times should have said, 'Judy, who are you talking to? You've got to tell us who some of these sources are, Judy, you've got to, because what you're saying is so wildly off from what other people are finding or not finding.'"
"I think they gave her so long a leash that she became untethered," he says thoughtfully. "And to me, in retrospect, that's as much of a problem-if not more of a problem-than whatever Judith Miller did, because even the best reporters require, demand, editors."
The New York Times Magazine's Matt Bai couldn't agree more.
"A lot of times, reporters get blamed for what I consider to be bad editing," he says. "The editor's job, in a lot of cases, is to protect a reporter from him or herself. I've said this many times, and I've seen this break down many times: It's every reporter's job to be excited about and passionate about their story, and it's every editor's job to temper that passion and to make clearer-headed decisions and to weigh both the emotional and professional attributes of the reporter and the information."
"So yes," he continues, "reporters can get very close to their sources, and they can be very passionate about points of view that they get from their sources. It is an editor's job to be skeptical of that, to push back and protect that reporter from their own passion and impulses, because the reporter can lose perspective."
Does losing perspective - like Miller seemed to when she was embedded with MET Alpha -mean that a reporter isn't doing his or her job?
"Well, first I have to say that I don't know Judy Miller, so nothing I say really pertains to her," Bai says. "But there are some very good reporters who lose perspective or whose emotional makeup affects the way the present their work, and good editors make their money by acting as a filter for that, and by allowing the reporter to advocate without getting run over."
According to Bai, "good editors" are especially essential in cases like Miller's, where a reporter is actually living with his or her sources. "I think one of the only times in my career I got in an argument over whether I was seeing clearly was when I was in Iraq for a month in 1998, and basically had editors saying to me, 'You're not seeing clearly because you're there, and things are being presented to you one way,' Bai recalls.
Fineman sees Miller's case as representative of the dangers of embedding, especially when it's coupled with laissez-faire editors. "In the run-up to the war, clearly, somewhere along the line, she seems to have gone pretty damn close to, if not over, the line of ceasing to be merely an observer and becoming some kind of participant in a particular side," he says. "I was always somewhat suspicious of some of the embedding agreements that were made in general between the American press and the military, and I thought - at least it looked to me from the outside - that Judy Miller had gone somewhere beyond embedding."
"She got played by her sources; she got taken in by them," agrees Jurkowitz.
Miller wasn't the first journalist to "get played." Nor will she be the last, for one simple reason: As Jurkowitz says, "reporters are human beings."
"But the way the system is supposed to work is, the people responsible for reining her in - for telling her she's getting too close to her sources, for taking her and changing beats and making sure she stays on that beat - are her editors!" says an exasperated-sounding Jurkowitz. "That's who I blame the most."
The very humanness of reporters - and editors - is what makes the fallout from
situations like Miller's so difficult to sift through. I'm inclined to agree with Bai when he tells me that "the problem with trying to set up guidelines or trying to study it from the outside is that everything related to journalism is a very imprecise and human and intuitive process."
But just because something is problematic or difficult doesn't mean it shouldn't be attempted: after all, isn't every profession - at least to some degree - "imprecise" and "human"? While it may be true, the assertion that journalism is a profession that can't be truly understood or studied by anyone who's not a journalist him or herself widens the already-substantial wedge between the media and the increasingly-skeptical public.
Make that the increasingly-skeptical and resentful public. "The Miller case has further harmed the public's perception of the press," says Boston-based media lawyer Sheldon Toplitt. "No one likes the concept of special treatment - for example, waiting in line for an hour at a restaurant, and then having, say, a kicker for the Pats waltz in and be given a table right away because of who he is. The press is saying, 'We should have something that other people don't have.'"
That "something that other people don't have" is the so-called "reporter's privilege" - the idea that there is a bond of confidentiality between a reporter and his or her source that he or she should not, by law, be forced to break. When it comes to reporter's privilege. the go-to court case is Branzburg v. Hayes, in which the Supreme Court first tackled the issue of whether or not journalists have a constitutional right to protect their sources.
But the national dialogue over whether there should be a reporter's privilege started long before that pivotal 1972 ruling. In fact, in 1934, the Newspaper Guild declared its
endorsement of the following stance: "Newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before other judicial or investigatory bodies, and that the newspaperman's duty to keep confidences shall include those he shared with one employer after he has changed his employment."
That argument was brought before the court by the four plaintiffs involved in Branzburg. Two of the cases were Black Panther-related; the others involved drug dealers. But in all four of them, journalists had been subpoenaed to appear before grand juries. Their lawyers asserted that no journalist should be forced to testify before a grand jury about confidential information he or she acquired (or confidential conversations he or she conducted) while on the job.
But the Supreme Court didn't buy that claim: in a five-to-four opinion written by Justice Byron White, it ruled that the First Amendment did not grant reporters the right to be exempt from testifying before grand juries.
"The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of the press guaranteed by the First Amendment. We hold that it does not," wrote White. "The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection."
But White's wasn't the only Branzburg opinion to leave a mark. Though he agreed with White that there was no absolute First Amendment privilege for reporters, Justice Lewis Powell wrote a concurring opinion in which he proposed that in some cases - specifically, when criminal investigations are "not being conducted in good faith" - a journalist's decision not to testify before a grand jury may be defensible.
In his concurrence, Powell demanded "the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct" and suggested that "these vital constitutional and societal interests [be evaluated] on a case-by-case basis."
And in the wake of Branzburg, instead of guiding themselves strictly by White's outright dismissal of reporter's privilege, a number of lesser courts charted their courses based on Powell's concurrence, from which they drew support for the existence of a qualified reporter's privilege. From Powell's concurrence, these courts extrapolated a three-prong "balancing test" to determine in which cases this qualified privilege is applicable.
Prong one necessitates that the person requesting information prove that said information is essential to the case. To satisfy prong two, the person requesting information must prove that the information is material, and to fulfill prong three, that person must prove that the information he or she is requesting cannot be found anywhere else and can be attained in no other way.
Or, as Toplitt puts it, "instead of running around willy-nilly forcing journalists to talk, the prosecution has to show that the information is vital, that the journalist has probability of an actual crime, and that the information can't be gotten any other way - so on balance, if the harm done by not hearing what the journalist has to say outweighs the harm done by bringing the reporter in to testify."
Since Branzburg, this three-prong test has been applied in civil and criminal cases and with respect to both confidential and non-confidential information.
"That ad-hoc test was so well-reasoned that circuit courts started following it," Toplitt says. "That's what made people think that Branzburg gave journalists protection. If you reread Branzburg, you realize, 'Wait a minute, the press lost that one!'"
And now, in the wake of the Miller imbroglio, the press may have lost something else: the public's support. "We, meaning media lawyers, had been operating for so many years successfully convincing the courts that we had won the Branzburg case, when it was really a house of cards to begin with," says Toplitt's fellow Boston-based media lawyer Rob Bertsche. "The only way we were able to win that fight as frequently as we did was because society was on our side. There was a sense that in society at large, the role of the journalist was a noble one, that we were exposing wrongdoing - Watergate, the Pentagon Papers, whatever it might be - and that, all things considered, reporters were on the side of the angels. That societal consensus, if it was ever there, is not there any more."
As a result, neither are the words "reporter's privilege" - at least when Bertsche argues his cases. "When lawyers in my group go in to argue reporter's privilege cases today, I tell them, 'Don't say the words 'reporter's privilege,'" he says. "Judges don't like to hear it. Say 'reporter's privilege' and the judge immediately starts talking back to you and saying, 'Well, I don't understand why reporters should have a privilege that other people aren't entitled to.'"
According to Bertsche, it's clear that those prosecuting journalists "are having a heyday today." They are, he says, "emboldened" by the Miller case and "the fact that juries and judges - judges, in this case - are fed up with the press and feel that the press have been enjoying privileges that they're not essentially entitled to."
Though high-profile cases like Miller's have prompted much of the shift in sentiment against reporters and reporter's privilege, it's the shift's implications for low-profile cases that are the most troubling.
"A lot of the focus is on the New York Times and the Washington Post: Well, they're the ones with the money and the wherewithal to fight the subpoenas," says Bertsche, who notes that the 450 newspaper members of the New England Press Association are getting more subpoenas than ever before. "But when you subpoena a small weekly newspaper in Maine," he says, "merely fighting that subpoena can bankrupt that newspaper!"
"We have newspapers that call us up and ask about whether they can use confidential sources at all," Bertsche continues. "And when they learn that at the end of the day, their reporter might be subpoenaed for the identity of the source, their first instinct is to back down, because they don't feel that they would be able to afford anything that even came close to a legal battle."
"That," he says emphatically, "is where the real shame is, and that's where the real chill is on first amendment discourse. That's where, I think, this [case] has a particularly pervasive and chilling effect."
How to stem the "pervasive and chilling" tide? One possibility - the possibility, in fact, for which Judith Miller lobbied during and after her jail stay - is the implementation of a federal shield law that would protect reporters from being forced to testify about their sources. (Similar laws are on the books at the state level in 31 states.) But that possibility is unlikely to be fulfilled anytime soon, as all attempts to bring about a federal shield law - including Senator Richard Lugar's, the most recent - have met with failure.
But perhaps it's a good thing that the implementation of a federal shield law isn't likely: such a piece of legislation might create more problems than it solves. As Toplitt points out, "if you're going to give protection to journalists, you have to decide who is a journalist - is Rush Limbaugh a journalist? Are bloggers journalists?"
"Essentially," he continues, "you have to decide who belongs in what group - and the people deciding that are the government, whom the journalists are supposed to be watching! It's like you're asking for a favor from the same people you're supposed to be acting as a watchdog for."
"Rather than trying to create this federal law," he adds, "maybe it's better to grant privilege at the discretion of the courts." After all, he says, when people think of "privilege," they think of "priest-penitent, doctor-patient, spousal privilege. None of these are in the Constitution; they're part of public policy. [And] as a matter of public policy, we don't want people to be able to smear people under the cloak of anonymity."
Another problem with shield laws, Toplitt says, is that "it's tough to have absolutes."
"Even the broadest-based shield law has exceptions, because in the creation of the law, the press is ceding that there are certain instances where the law shouldn't apply," he argues.
But just as it's tough to have legal absolutes, it's tough to have personal ones: "I'm not 100 percent in the anti-shield-law camp," Toplitt says. "But timing is everything, and I'm not sure the timing is right right now."
Neither is Bertsche. Though he thinks Miller's pro-shield law stance "certainly spawned a lot of the shield law efforts now going on on Capitol Hill," he also says that "in the long run, I'm not sure that her experience has really given a lot of weight to the shield law efforts. I think she was somewhat discredited by the way things turned out."
Part IV of "Miller the Martyr?" will appear in tomorrow's Daily.
