Accepting the outcome of promising anonymity

Filed under: Opinion |

Last week, Judith Miller of The New York Times was sent to jail for refusing to reveal the name of one of her sources.

And while I’ll likely lose my press pass for saying it, I think she deserved to go to jail. (I also think that the collective whining of the Fourth Estate about the erosion of freedom of the press is way over the top.)

My reasoning is quite simple. I don’t think anyone is above the law.

And I think that too often my brothers and sisters in the media tend to believe that because of the First Amendment, we are somehow exempt from playing by the same rules that everyone else has to follow.

I’m not a Constitutional scholar, but I can’t find anywhere in the First Amendment where it says that journalists have a right to thumb their noses at rulings made by federal courts.

The language in the First Amendment is quite simple: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

I can’t find the word “anonymous,” the word “source” or the word “privilege” anywhere in that sentence. I also don’t think freedom of the press is going to come to a grinding halt because a few anonymous sources are outed-especially if those sources are part of an investigation into whether a federal law was broken.

Miller’s case, at least in my view, is fairly cut and dry.

Special Counsel Patrick Fitzgerald is trying to find out who leaked the name of CIA agent Valerie Plame. Revealing the name of an undercover agent is illegal, according to the Intelligence Identities Protection Act, which was passed in 1982.

Judith Miller was given Plame’s identity by an anonymous source. So was Matt Cooper. So was Robert Novak.

Miller and Cooper were served with federal subpoenas last year requiring them to reveal the name of the person who identified Plame. They refused, and were subsequently found to be in contempt.

Novak hasn’t been found in contempt and isn’t discussing the case.

Cooper said that his source has given him a waiver and he will comply with the subpoena. Miller has said she thinks her source was coerced into signing a waiver.

Although 49 states and the District of Columbia have shield laws that allow journalists to protect anonymous sources, there is no similar federal law. And no law exists anywhere that protects journalists from providing information if a crime has been committed (which is what the investigation is trying to determine).

What irks me about Miller is that she appears to be trying to use her position as a journalist and the First Amendment to play by a different set of rules.

Were she firm in her convictions about promising her source anonymity, and were she stating that her refusal to comply with the subpoena was rooted in a personal promise she had made (not some perceived First Amendment protection) and that she was not willing to break that promise, I’d be the first to support her.

I’d still think she should go to jail for refusing a court order, but I could respect her more. Standing on principle is an honorable thing.

Hiding behind your professional designation (and your interpretation of the Constitution) seems a bit weak. And unlike some of my media cousins, I think it does the profession more harm than good.

If Miller gave her word and she’s unwilling to break it, then she should be willing to accept the consequences. Of course most people rarely take the consequences into account until they rear their ugly heads.

If I promised someone anonymity, I’d keep my word. And if I had to sit in a jail cell to do it, I would. What I wouldn’t do is try to hide behind my press pass (which I probably don’t have any more anyway) or the First Amendment.

Miller doesn’t want to reveal her source. Fine by me. But don’t whine about having to go jail. And her request for home confinement smacks of someone wanting special treatment.

Contempt of court is a serious matter. If people could willy-nilly refuse to provide information to our courts simply “on privilege” our legal system would grind to a halt. Laws are necessary in a functioning civilization. Without laws there is chaos. Chaos is unacceptable.

What is equally unacceptable is thinking that you are above the law or that the law doesn’t apply to you.

While I do believe that anonymous sources in journalism are necessary, I also think that they are way overused.

The media serves a necessary function in our society, but we aren’t any better or any worse than anyone else. And in certain ways, we’re held to a higher standard because we are the eyes and ears, and sometimes the voice, of the masses.

I don’t think it’s too much to ask that we play by the rules and set an example by following the rule of law.

Mike Boyd is editor of the Colorado Springs Business Journal. He can be reached at or 329-5206.