Once the issue of Judith Miller's refusal to reveal a confidential source matured last week with the Supreme Court's refusal to hear her appeal, I wondered how long it would be before the Minneapolis Star Tribune would lecture us about the critical importance of a journalist's ability to protect the identity of confidential sources. The Strib does not disappoint, as we now have a piece from the Strib's "reader's representative" entitled "How a journalist expresses patriotism." Excerpt:
Tomorrow morning, when I unfold that crinkly document [the Declaration of Independence], I'll be pointing out that you don't have to look back to 1776 for examples of patriots standing up in defiance of the unjust abuse of power by government officials. I'll be talking about Judith Miller, 57, a reporter for the New York Times -- a fine example of how journalists express patriotism.
Miller is spending her holiday weekend contemplating going to jail for keeping a promise to protect the identity of a confidential source -- someone she spoke to in researching whether government officials were working to discredit a Bush administration critic. As a reporter, Miller is aggressive, but hardly flawless. She took substantial criticism two years ago for her reporting on what she thought was evidence of weapons of mass destruction in Iraq. But right now, Miller is standing out there alone in her willingness to go to jail to protect freedom of the press, a core value of the democracy we celebrate tomorrow.
I am writing about this as your reader's representative because the situation threatens to stem the free flow of information about your government. It is likely to discourage some reporters less able or willing to risk jail from pursuing important stories and frighten government employees who may know of wrongdoing but won't come forward if their identity will be revealed. You have a lot to lose in how this turns out -- and there's something you can do about it.
When you hear a Star Tribune type prattling about the importance of the confidentiality of sources, it's worth recalling that the Star Tribune once took a strong stand on the principle of a journalist's right to reveal and publish the name of a source despite promising confidentiality to that source in exchange for his information. The Star Tribune stood on that principle all the way to the Supreme Court of the United States in the case of Cohen v. Cowles Media Co. The majority of the Supreme Court, in an opinion written by the great Byron "Whizzer" White, held that the Star Tribune could not breach its promise of confidentiality without the consequence of paying for breaking that promise. Here's a recitation of the issue and the facts in that case:
The question before us is whether the First Amendment prohibits a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information. We hold that it does not.
During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican associated with Wheelock Whitney's Independent-Republican gubernatorial campaign, approached reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming election. Cohen made clear to the reporters that he would provide the information only if he was given a promise of confidentiality. Reporters from both papers promised to keep Cohen's identity anonymous, and Cohen turned over copies of two public court records concerning Marlene Johnson, the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation, and one reporter tracked down the person who had found the records for Cohen. As it turned out, the unlawful assembly charges arose out of Johnson's participation in a protest of an alleged failure to hire minority workers on municipal construction projects, and the charges were eventually dismissed. The petit theft conviction was for leaving a store without paying [501 U.S. 663, 666] for $6.00 worth of sewing materials. The incident apparently occurred at a time during which Johnson was emotionally distraught, and the conviction was later vacated.
After consultation and debate, the editorial staffs of the two newspapers independently decided to publish Cohen's name as part of their stories concerning Johnson. In their stories, both papers identified Cohen as the source of the court records, indicated his connection to the Whitney campaign, and included denials by Whitney campaign officials of any role in the matter. The same day the stories appeared, Cohen was fired by his employer.
So much for the principle of protecting the confidentiality of sources, at least as it applies to the Minneapolis Star Tribune. What would be even more hilarious is if the Strib was an amici in the Miller case. If anybody knows this, e-mail SDP.
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