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November 29, 2004

The Press and the Prosecutors

The Washington Post has this summary of the state of the Valerie Plame affair (in which, as you'll recall, anonymous administration sources illegally disclosed Plame's identity as a CIA operative to columnist Bob Novak, and Novak promptly published the information, causing Jon Stewart to deem Novak a "Douchebag of Liberty").  Still no word on why Novak himself has apparently not been subpoenaed.  There are suggestions that Novak has pled the 5th - but since the criminal statute only reaches people with "authorized" access to a covert operative's identity, and Novak doesn't fall in that category, it's not obvious what crime Novak might have committed (and thus on what basis he might be able to claim constitutional protection from self-incrimination).  Curiouser and curiouser.

The bigger issue here is how to balance freedom of the press (in particular, the press's need to rely on confidential sources for certain information) against the public interest in prosecuting crimes.  In the view of some, reporters should essentially have an absolute right to maintain the confidentiality of their sources, regardless of the circumstances.  But the Plame case strikes me as unique in that the disclosure of her identity served no public interest whatsoever - it was simply a political vendetta, and Novak was used as part of it.  The Plame case therefore seems very different from the Wen Ho Lee case or the case of Providence reporter James Taricani (in those cases, it was at least arguable that publication of the information in question served the public interest). 

Along those lines, here's part of a letter I wrote to the NY Times a few months back in response to an editorial urging the prosecutor in the Plame case to back off:

Re: "Journalists Face Jail Time" (editorial Aug. 11, 2004): What sets the Valerie Plame affair apart from "the typical case involving a reporter's right to protect a source" is the total lack of any public benefit in disclosing Ms. Plame's identity as a CIA operative.  Most cases involving confidential sources present some degree of tradeoff - the public interest in prosecuting illegal leaks is balanced against the public interest in learning about information that the press can only get by using confidential sources.  But when publishing the information serves no public interest (as here, where it served only a political vendetta), it's hard to see what legitimate interest is served by continuing to protect the source.
It's no surprise that the Times, part of one of the largest media companies in the world (and one that relies heavily on anonymous sources), takes an absolutist view on protecting confidential sources.  But the Times would do well to remember that a free press is not an end in itself; it has value only to the extent that it benefits the public, so the press has a responsibility to be sure that its special protections are utilized in the public interest.  In this case the public benefit of the disclosure was nonexistent.

I've had a couple of letters published in the Times, but they didn't run this one.  (In fact, I didn't see any letters published disagreeing with the Times's editorial - but maybe I missed them.)  I continue to think, though, that if the press wants an exemption from the obligation that the rest of us would face if we furthered the commission of an apparent violation of federal law, it is reasonable to ask the press to invoke that exemption only in the service of a greater good.  Helping the Bush administration exact political revenge doesn't seem to me to qualify.

Posted by David at 12:44 PM in Law and Lawyers | Permalink

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