Friday, July 22, 2005

The Press Box of the Shining Wires

For those of us leaning toward the liberal end of the political spectrum, the last couple of weeks have been difficult to beat. Between the steady stream of incriminating evidence, the near daily excoriation of Scott McClellan by the White House press corps, and the comically inept defense presented by administration supporters, Rove's slow-motion fall from grace has given Democrats an uncharacteristically bright moment to savor during an otherwise bleak eight years. I, for one, find it difficult to contain my exuberance as we edge toward what appears to be an inevitable implosion in the Bush White House. Honestly, words escape me.

Yet, my joy has been tempered by the fact that the current state of affairs was arrived at only after coercive forces were aimed at the free press. I feel like a crime victim who witnesses the conviction of the offending individual with the knowledge that the case was made with planted evidence. The "victim" in me screams "Yes!", while the "civil libertarian" howls "No!" Frankly, this dilemma is making it difficult to fully appreciate current affairs. And maybe I'm spoiled, but I'm one who prefers his political pleasures pure.

Moreover, the situation has sparked a fair amount of discussion regarding the shield laws (or the lack thereof) covering journalists. Currently, 49 of 50 states afford journalists some degree of protection for the confidentiality of their sources, while almost none exist at the federal level. This has left us with a rather uneven landscape, legally speaking. On the other hand, there does appear to be a fairly consistent professional ethic on the matter: source confidentiality is to be maintained at all costs unless said source specifically provides a release. Unfortunately, because of the disparity between the legal and ethical universe, journalists sometimes end up in jail.

At any rate, my attempt to resolve these conflicts in my own mind has led me back to a fundamental question: why do shield laws exist?

The laws protecting communication between attorney and client, between husband and wife, or between medical professional and patient are not abstract, theoretical exercises. In each case a balance is being struck between competing agendas. On the one hand, you have society's need to be able to effectively investigate criminal activity, and on the other the efficacy of the institution in question. A defense attorney certainly has information about his client that would be of great value to any prosecutor, but if such testimony could be compelled clients would view their attorneys as potential prosecution witnesses as opposed to advocates. Clearly, such an outcome would undermine our larger aspirations toward justice. Similar arguments justify protections in these other relationships. There are, of course, exceptions to these protections (usually in reference to future criminal acts), but we have for the most part decided that investigatory limitations in these areas leads to a greater societal good.

A similar argument can be made in the case the journalists. Society frequently benefits from the illegal acts of whistleblowers who choose to reveal classified information or information covered by nondisclosure agreements. If the journalists who become privy to this information suddenly become conduits to government investigators, many sources will become disinclined to serve society in this fashion. In fact, we are already beginning to see the development of this phenomenon in response to the Rove/Cooper/Time magazine affair.
Norman Pearlstine, editor in chief of Time Inc., said … that his decision to obey the courts and hand over Mr. Cooper's notes and documents to the special prosecutor - which he said he did reluctantly after fighting the edict all the way to the Supreme Court - has already resulted in several valuable confidential sources refusing to cooperate again with Time magazine.
However, all sources are not equal and it is misleading to view them this way. Specifically, there are sources who are vulnerable to powerful forces within the society and there are those who are not. In the same sense that First Amendment protections are unnecessary to defend expressions supported by the majority, powerful individuals within society are not at risk of persecution by the prosecutorial machinery that they control. In other words, the powerful do not have to be protected from themselves.

If we understand that two classes of confidential source exist, it also becomes clear that the rationale for protection in each case is distinct. You must protect vulnerable whistleblowers, lest they be crushed by the powerful they transgress against. But, protecting empowered sources serves only to preserve the relationship between the source and the journalists. It's merely about access. That goes a long way to protecting the journalist's professional assets, but it is hard to say how this helps you and me.

Unfortunately, the relationship between the powerful and the press has evolved into a much more symbiotic form over the last 20 years (or so). "Background" sourcing from highly placed government officials has comprised an increasing percentage of the information available to journalists of late. At the same time, these channels have become important release points for administration doctrine that cannot be revealed directly. Both parties have personal interests in keeping this exchange alive and so both are likely to fight to preserve it.

Yet, the preservation of this relationship does not justify the protections that many would endorse. To do this right, there has to be some way to systemically recognize the distinction between the two classes of source. And I truly doubt that the law is the best way to do this.

In truth, it is probably the journalist who is in the best position to make this assessment. He could explicitly grant different levels of confidentiality based on the position of the source in question. In fact, that probably would be in the best interests of the public at large. You might find his access to certain individuals limited under this scenario, but society would lose little, as "well-placed sources within the administration" would easily find other methods to disseminate the information they had chosen to leak.

Will this occur? Unlikely, I suppose. Much like the Warren of the Shining Wires from Watership Down, the press has lost much of its ability to subsist without those who feed them. It would take quite a bit to encourage them to leave the comparative safety of the Warren.

However, until they do venture out, I'm hard-pressed to justify taking action that would make their stay there that much more comfortable. If the press serves no purpose other than presenting an additional form for administration policy, it hardly matters whether it exists at all.

This is one instance where the feeding hand really should be bitten -- at least from time to time. It keeps everyone a little more honest and the public is served as it should be. So, until the press is willing to bite back, I think I'll refrain from cementing the status quo.

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