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The Free Press Is Essential, But Journalists Cannot Be Above Law

Original Article

The New York Times had an editorial the other day about a highly paid corporate CEO who was charged with questionable accounting practices. “He knew what the law was,” it said, “but he thought the law was wrong. He thought that gave him the right to disregard the law. America does not work that way. If we don’t like a law, we can say so, and try to change it, but in the meantime, we have to obey it.”

OK, I made that up. It is, however, exactly the kind of thing that The New York Times editors would say – about somebody else. They think of themselves, however, as if they were my imaginary CEO, entitled to ignore a law they disagree with. They have been ordered by a court of law to disclose the source, or sources, of information gathered by a reporter. The case has gone all the way to the United States Supreme Court, and they have lost.

So, will they obey the law? Nope. They say that the law is wrong and they will defy it – go to jail if necessary. (As it turns out, it was the reporter, Judith Miller, who went to jail, not the editors who adopted this arrogant attitude.)

Is this a noble cause? Should we applaud this defiant stance? Many journalists insist that it is really important that they have “anonymous sources” so they can get people to tell secrets that they would otherwise be afraid to let out.

First, let’s acknowledge that few, if any, institutions in America wield as much power as the press. The claim that it cannot do its job without being able to shield its sources sounds a sour note for most people (journalists excepted).

Second, one has to wonder how many of those “anonymous” sources are really “fictitious” sources. It seems all too convenient for reporters to make them up and then demand to be shielded when called to account. Because sources usually are protected, in one way or another, these scams are seldom exposed – but it happens sometimes. The New York Times itself ran stories by a reporter named Jayson Blair, but finally had to admit that much of what he wrote was invented by him. Washington Post writer Janet Cooke won a Pulitzer Prize for a story she made up. Dan Rather used an anonymous source to attack George Bush’s military record. It turned out that there was a source, but not one that anybody believed to have credibility.

Third, it just seems unfair. The person who is the subject of a story may be humiliated, insulted, embarrassed or slandered, but, if he demands to know who his accuser is, the reporter and his employer hide behind the “anonymous” source position. Those who are harmed have no way to protect themselves or to set the record straight.

Fourth, as the press itself often proclaims, “The public has a right to know.” No law is more popular with the press than so-called “sunshine laws.” These laws require governmental agencies to hold their meetings in public. Government officials often complain that it is difficult to negotiate under these conditions, and that people are often reluctant to be open about their position when they are under public scrutiny. No matter, the editorials tell us, “The public has a right to know.” When a court asks a reporter to reveal his sources, the public is asking! If there was ever a time when the public has a right to know, this is it.

Some will protest that the example of Deep Throat, the anonymous source of Watergate fame, shows how important it is that sources be hidden. But no court ever ordered the Washington Post or anyone else to disclose the identity of that source. The Deep Throat incident is simply not relevant to the current issue facing The New York Times.

I want to be clear that I am not suggesting that reporters should be barred from using anonymous sources. And no court has suggested that. What the courts have said is that, when those sources become the legitimate subject of litigation or criminal investigation, then the law requires that they be disclosed. That is not unreasonable. Every one of us faces the prospect that our privacy will be diminished if we are embroiled in court proceedings. Every civil case involves a process called “discovery,” where each side may be forced to divulge information that they want to keep private. In criminal proceedings, bystanders often have private matters laundered in public. People who are called as courtroom witnesses are routinely required to discuss things that they do not want to discuss.

Put another way, the justice system needs to function. Our Constitution protects the press, and I thank God that it does, but it does not protect anonymous sources. And the recent ruling of our Supreme Court does not present a serious threat to The New York Times or to anybody else trying to perform as a journalist.

Howard Chapman, a resident of Fort Wayne, is an Adjunct Fellow of Discovery Institute.