The chilly ripple effect of a jailed reporter
WASHINGTON — "Journalists are not entitled to promise complete confidentiality - no one in America is," Special Counsel Patrick Fitzgerald told the court.
That is debatable.
Confidentiality is observed in doctor-patient relations, priest-penitent relations, and, yes, lawyer-client relations.
If reporters do not, in equal measure, enjoy a First Amendment privilege to protect their sources, it is because the public does not, in equal measure, value their services.
That is not to say that reporter-source relations are completely unprotected. A 1972 decision of the Supreme Court held, in effect, that journalists do enjoy a qualified First Amendment protection. The government can demand to have a source identified only after demonstrating that there is no other way to obtain information needed in a criminal investigation.
Over the years, subpoenas for reporters have been increasing, without arousing any great outcry from a public largely turned off by the news media, symbolized by Jayson Blair and Dan Rather.
Mr. Fitzgerald's pursuit of Judith Miller, of The New York Times, and Matthew Cooper, of Time, seems less designed to find out who leaked the identity of an undercover CIA officer, which the prosecutor probably knows by now, than to discourage future leaks, regarded as threatening.
Confidential sources have played a vital role in exposing wrongdoing in government from Watergate in the Nixon era to Iran-contra in the Reagan era to Monica Lewinsky in the Clinton era.
President Reagan once complained of being "up to my keister in leaks."
As one who came close to being jailed for contempt of Congress in 1976 for refusing to reveal a confidential source, I have an obvious interest in this case.
The Miller-Cooper case - in which Ms. Miller was jailed Wednesday for refusing to divulge a confidential source, and Mr. Cooper agreed to cooperate with prosecutors after his source gave him permission - can be regarded as part of a frontal attack on the press. One can expect many a future investigation to be dropped for fear of subpoenas for journalists to expose their sources. One can expect many a whistle-blower to think twice before blowing that whistle to a reporter.
Think for a moment of what the situation would have been if the Nixon administration had found a way of subpoenaing Bob Woodward and Carl Bernstein, threatening them on pain of jail to identify Deep Throat.
• Daniel Schorr is the senior news analyst at National Public Radio.