When a reporter is jailed
Judith Miller's incarceration could affect how sources use journalists to leak information
WASHINGTON AND SAN DIEGO — The jailing of New York Times reporter Judith Miller over her refusal to divulge the name of a confidential source represents the most important legal confrontation between the government and the press in a generation - though its effect on the process of US journalism remains unforeseen.
It is not reporters but sources themselves whose behavior may change the most, says one expert. Having seen the limits of their legal protection, potential whistle-blowers could become more reluctant to pick up the phone and make, or take, a media call.
"It's going to hurt," says Joe Angotti, chair of the broadcast program at Northwestern University's Medill School of Journalism. "There are people all over the country who may have been thinking about using a reporter to reveal some information and are having second thoughts."
Ms. Miller's incarceration followed a dramatic court hearing on Wednesday. Matthew Cooper of Time magazine, another journalist facing jail in the case, announced that he was now free to divulge an anonymous source's name to a grand jury, due to a release received from the source himself. Ms. Miller received no such release, or did not mention one. She gave her jewelry to her husband and was taken into custody.
Lawyers for the reporters had contented that the First Amendment shielded them from testifying as to their sources. Federal judge Thomas F. Hogan held that they had no more rights than other citizens when called to appear in grand jury proceedings. He was adamant that Miller be jailed for breaking the law.
"If she was given a pass on this, the next person who comes up" might also decline to talk, he said.
This clash of law vs. civil disobedience is widely seen as the most serious litigation involving media rights since the Pentagon Papers case of 1971. The underlying investigation involves a federal probe into the disclosure of the identity of an undercover CIA operative.
If nothing else, the case may lead to increased pressure for a federal shield law to protect reporters who refuse to reveal sources. On Wednesday, the board of the American Society of Newspaper Editors voted to endorse such a law. The Senate Judiciary Committee has tentatively scheduled a hearing on the matter for later this month.
The idea that reporters have a right to protect sources is hardly new. Maryland enacted the first shield law in 1896 after a Baltimore Sun reporter was jailed for five days after he refused to testify about a source who told him of political and police corruption. Now, 31 states and the District of Columbia have shield laws protecting journalists from some types of subpoenas in state cases.
There is unlikely to be a groundswell of public reaction calling for equivalent federal protection, however. The media's reputation is in tatters following a string of revelations of made-up or shoddy work. And the fate of Miller herself may not excite anyone outside the Washington Beltway - especially considering that the source she is protecting may have committed a felony by leaking a covert operative's name.
"It's a matter of great professional significance to reporters, but probably not to everybody else," says Byron York, an author and White House correspondent for National Review magazine.
It's too early to tell if the jailing of Miller will make the press more gun-shy about investigative pieces. Since her case is based at the federal level, and is quite unusual, it may have little relevance to local reporters trying, say, to uncover corruption at City Hall.
And if Miller is released from jail after only a few days or weeks, her plight could be quickly forgotten.
Sources, for their part, might indeed be affected, as Mr. Angotti notes. Some reporters might become more cautious, as well. But reporters, for the most part, tend to be a querulous lot, and many may be unlikely to be diverted from their investigations by the somewhat remote prospect of a few weeks in the pokey.
"If reporters go into this business for the right reason, to make a difference and to expose wrongdoing whenever they can, they're not going to be turned away by this decision," says Angotti.