An Exchange on Reporters and Their Confidential Sources
New York Times reporter Judith Miller and Time magazine correspondent Matthew Cooper face the possibility of jail time for refusing to divulge confidential sources to a special counsel investigating the leak of an undercover CIA officer's identity.
*
On Oct. 10, Michael Kinsley wrote a column in the Los Angeles Times questioning whether reporters had an "absolute right and an absolute duty" to protect confidential sources.
*
Bill Keller, executive editor of the New York Times, sent the following letter in response:
Michael Kinsley's case for throwing uppity reporters in jail is law-school clever, but it feels weirdly detached from the real world where most journalists work. Kinsley slyly sets up a straw man, the idea of an "absolute" privilege for reporters protecting confidential sources, and then he knocks it down. He poses a black-and-white choice between protecting the secrets of America's security services and protecting the sources of journalists -- a choice that exists mostly in theory.
There are a few jurisdictions -- New York and the District of Columbia are among them -- that offer reporters an absolute protection against being forced to divulge confidential sources, and so far those laws have not brought down the justice system. But most of the 31 states that have enacted shield laws offer a limited protection. They set up a test aimed at balancing two genuine public interests: on one hand, the pursuit of justice; on the other, the public value of reporters' ability to find out what is going on inside large, powerful institutions. A typical test is something like this: Before a judge can compel a reporter to divulge a source, it must be shown that the information sought is critical to the case and cannot be readily obtained from other sources.
In the federal courts, which propose to send Judy Miller and Matthew Cooper to jail, the test tends to be weaker. And when it comes to grand jury proceedings, under Supreme Court precedent there is almost no privilege -- and the government does not even have to tell us what it wants to know, or why. Thus in the case before us -- the search for who divulged the identity of Valerie Plame -- the special counsel does not have to explain why the identity of the leaker is unavailable from the man who published it, Robert Novak, or from whatever sources the counsel's staff already suspects provided him the information. As far as we can tell, the special counsel is on a fishing expedition. This debate is not about an absolute right to protect sources; it's about the absence of any right whatsoever.
