Policy made plain.
Aug. 9 1998 3:30 AM

How we lost that story.

How We Lost That Story


At Slate, we do not go whoring after scoops. While others chase semen-stained cocktail dresses and sweat through the Beltway summer humidity in pursuit of leaks, we sit back in our breezy Pacific Northwest aerie, sipping a microbrew, observing, analyzing, synthesizing, and generally thinking great thoughts. Or at any rate thinking thoughts. But we are not above indulging in a scoop if it falls into our lap. For a few hours this week, we thought we had one.

Over the weekend, a journalist friend in London e-mailed us an article. It was by a former British intelligence officer (MI5? MI6? MI7? Who can keep them straight?), telling tales out of school about alleged attempts by British intelligence (MI8? MI9?) to kill Muammar Qaddafi, the prominent Libyan statesman and murderer. A bomb intended for Qaddafi allegedly blew up the wrong car, killing innocent people. At the British government's request, the author of this tale was arrested Saturday in France. Our friend's newspaper, and all other British papers, were forbidden to publish the article under Britain's notorious Official Secrets Act. But Slate could publish it on the Internet, he reasoned, and in Drudge-like fashion avoid the constraints on print journalism and draw attention to ourselves. The story would get out and the Official Secrets Act would be exposed as a farce in the age of cyberspace.

We did what any red-blooded American would do in such a situation. We consulted our lawyer. He told us it's not so simple. (The lawyers' mantra.) Slate also might be subject to the Official Secrets Act. If we published this article, not only could our editors be stopped at Heathrow on their way to pay homage at the Diana museum, but the assets of our parent company could be seized, and so on. Imagine millions of Windows 98 CD-ROMs going moldy in some government warehouse! The heart sickens. Could we in good conscience risk denying the plucky British people this marvelous operating system, with its fully integrated Internet browser?

Our lawyer said we might escape Britain's ridiculous censorship laws by arguing that we are an American publication, and any seepage into Britain was purely unintentional. Or we might note that the story--it's now Monday morning, Pacific time--was already dribbling out. The London Sunday Times had mentioned the alleged Qaddafi plot, comically reasoning that the government claims the story is untrue, and something that never happened cannot be an Official Secret. Just to be safe, though, the reference was buried deep within an article on something less interesting. On Monday, other British papers reported that other British papers had reported the story.


But in truth, getting the story into Britain was not incidental: It was the main idea. And to the extent the story was already out in Britain, we had little interest in publishing it. In short, we realized, our lawyer's efforts were futile: There was a perfect inverse correlation between our desire to publish the article and our legal ability to do so. Basically, if it didn't violate the Official Secrets Act, there was no point.

This conclusion turned a potential scoop into a potential stand on principle, which is even more exciting. Should we ask Microsoft Corp. to prove its bona fides as a media company by backing an act of journalistic civil disobedience? That sounded like a lot of fun, but first we had to figure out which principle, exactly, was at stake.

Was it the right of the Internet to be free of all government restrictions? No. We are comfortable with the idea that some national security information--the names of agents in hostile countries is the usual example--should not be published and that such constraints should not have to depend on every journalist in the world acting voluntarily. The Internet makes enforcement of any restrictions on the spread of information much more difficult. But it does not, as far as we can see, affect the principle that society ought to have the right to prevent or punish publication of some information.

Was the principle at stake here the right to be free of stupid and/or unnecessary government restrictions? Governments will always claim too much secret territory. A botched assassination attempt that killed innocents is just the kind of thing the citizens ought to know about, while the government won't want them to know. But it makes no sense for a journalist to say, "I don't mind being censored, but only about information I wouldn't publish anyway." There's no need for a law to prevent you from doing what you wouldn't do anyway. If you concede the government's (society's) right to rule some information out of bounds, you must also concede the right to draw the line in a place you disagree with.


Of course civil disobedience--breaking the law (and taking the punishment)--is a valid, even noble, way to dramatize iniquity and create pressure for change. For Slate, a basically American publication, to risk its future on a crusade to reform the excessive secrecy laws of the United Kingdom would have been a lovely gesture. But somehow it did not seem morally mandatory. Let the Brits care for the Brits.

So maybe the principle is that Internet publications shouldn't be subject to stupid and/or unnecessary censorship by foreign governments. Although, with Internet access, you can get Slate as easily in Rwanda as in Redmond, so perhaps the rule should be that every Web site must follow the laws of its "home" country, and no other. After all, if an American publication like Slate finds itself subject to Britain's Official Secrets Act, this turns the Internet's promise of freedom on its head. Not only are we not liberated from ourparticular national jurisdiction: We are simultaneously subject to everyother national jurisdiction. Slate is content to obey the laws of the United States, even laws we don't care for. But the notion of, say, Belgium popping up to enjoin us from criticizing moules frites seems unfair.

Trouble is, the Internet makes a farce of any such one-Web-site-one-country solution, as the case in hand demonstrates. Our British friend instantly and effortlessly e-mailed us the rogue spy's article, and if we hadn't been worried about British law we would have made it as instantly and effortlessly available in Britain as if he'd published it himself. In this case that would have been a happy result. But what happens when those agents' names get e-mailed from the United States to, oh, Libya and immediately get posted on www.muammar.com? As a practical matter this may be unavoidable. And, to be clear about it, the massive censorship necessary to avoid it is certainly not worth the cost in freedom. But there's no point in pretending that a Web site subject to only one country's laws is actually subject to any at all.

So in the end we were denied both an exhilarating scoop and an invigorating stand on principle. There is an obvious opportunity here for a bonanza of international conferences to study the need for worldwide treaties to set up global commissions to come up with transnational standards for ... oh God, we can't go on. There must be an easier way. Any suggestions?

--Michael Kinsley