Along the Tracks

Saturday, July 09, 2005

Some responsibilities go beyond rights

Much of the discussion on the value and parameters of a potential confidentiality privilege for journalists assumes those (we) journalists should not face consequences for granting confidentiality to sources.

This, I think, is where the discussion goes astray.

Non-journalists grant confidentiality to sources all the time. It's called "keeping secrets." Some secrets are completely irrelevant to the wider world, some have huge implications for others - and some seem to be in one category but end up in the other. Then there are all the shades of gray in between.

When people who have been told a secret are called to testify in court, they face a choice: Is protection of my source worth the price of potential fines or even jail time? In most cases, that weighing of costs tips in favor of revelation and the person who accepted the secret discloses the source. However, occasionally, a witness refuses to testify, believing the punishment is worth the protection afforded to the source - remember Susan McDougal?

Thus, for most people and in most situations, a pledge of confidentiality does not entail a willingness to protect the source in a court proceeding. Yet, when the seriousness of the information and the value of the source warrant, people do in fact protect confidential sources.

The founders recognized a privilege of confidentiality in only two relationships - spouses and attorneys - and in these the name of the source is generally not in question. As Mickey Kaus has demonstrated, any extension of a confidentiality privilege to "journalists" could easily turn into a sweeping right to refuse to reveal the source of almost any information provided by anyone.

So what are working journalists to do?

Easy: Accept responsibility for our actions. In the newsrooms I have led, I have always made it clear that use of confidential sources is a last resort only acceptible when information crucial to a story can be provided in no other way. It is, in some ways, an admission of failure on the part of the reporter and his or her editor to provide the public with a complete story. After all, often the source of information is as crucial to a story as the information itself. On the very rare occasions I agreed to grant confidentiality to a source, the story hinged on the information provided and, quite often, the source faced physical peril or harrassment if revealed. Those, in my opinion, were valid justifications for promising confidentiality. My reporters and I recognized that, should a court case develop involving the story or the source, and they or I should be called to testify, we would have to refuse and face a contempt of court charge. This is a serious commitment which should only rarely be made. When made, it should hold like the firmament.

In today's mainstream media, confidential sourcing has become the norm. Frankly, it is lazy journalism and I hold little sympathy for the reporters, editors and news outlets which find themselves entangled in court cases like the grand jury investigation in the Valerie Plame leak.

Instead, journalists seeking to penetrate the Washington establishment should recognize the potential for manipulation by sources who refuse to stand by their statements. They should commit themselves to the old-fashioned foot work which can often yield the same story, with greater value and insight, without using confidential sources at all. Finally, they should accept the responsibilty a commitment of confidentiality requires, and, should they be held in contempt of court, walk confidently off to jail knowing they have performed a valuable service to the public and, ultimately, will be vindicated for their actions.

The granting of a pledge of confidentiality is a serious matter; it should have serious consequences. It is and should remain a responsibility, not a right.

UPDATE: The Cleveland Plain Dealer has apparently decided whatever story this relates to is not worth fines and jail time. Maybe - just maybe - they are making the right call, and will be able to provide a better, more accurate story in the coming days by getting information on the record. If not, they may decide to run with what they have and face the consequences. This is how journalism is supposed to work - not blanket rights encouraging sloppy work. (Thanks, Instapundit.)

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