The Anonymity Trap
Norm Pearlstine didn't go far enough.
It's been open season on Norm Pearlstine since the Time Inc. editor in chief decided to turn over Matthew Cooper's notes to Special Prosecutor Patrick Fitzgerald. In the New York Times, Frank Rich accused Pearlstine of elevating corporate interests over press freedom. Times media columnist David Carr went on to chide him for transforming Time"into a lifestyle bible that often leaves the more ambitious stories to others." The New York Observer contributed a savage précis of Pearlstine's entire career.
This gang-bang speaks more to journalistic groupthink than to any real moral or legal reasoning. Pearlstine hasn't argued his case beyond the quotes he has supplied in a couple of interviews, but he's clearly struggled with the issue more deeply than New York Times publisher Arthur Sulzberger Jr., whose decision on the other side evinces no difficulty and no doubt. Can the nation's leading newspaper really find it an easy call to defy the nation's high court when faced with a ruling it doesn't like? Is corporate disobedience—which would have been a new one on Thoreau and King—really a principle the Times wants to establish?
Pearlstine's conclusion that having traveled every legal avenue on behalf of its view of the First Amendment, a publication should obey the law seems persuasive to me. Indeed, this was the Times' own position in the landmark Pentagon Papers case, in which the paper clearly would have complied with the Supreme Court's ruling and withheld publication had it lost—even though a far more fundamental right was at issue than today.
But Pearlstine's thoughtful and courageous rejection of the view of the journalistic establishment of which he is (or was) a pillar doesn't go far enough. There's a strong argument that journalists at Time and elsewhere should not just cough up the names of the Valerie Plame leakers in court, but share them with their own readers as well.
Journalists make a fetish of anonymous sources. They do so for reasons ethical, psychological, and anthropological, including genuine principle, the lure of heroism, and—especially in Washington—a culture of status based on access to inside information.
But let's ignore the ulterior motives and focus on the principle Judith Miller has so forcefully asserted by going to prison. To Miller and the Times, confidentiality is the trump value of journalism, one that outweighs all other considerations, including obedience to the law, the public interest, and perhaps even loyalty to country.
This is indeed a strong principle, but it is a misguided one. In the Mafia, keeping confidences is the supreme value. In journalism, the highest value is the discovery and publication of the truth. When this paramount value comes into conflict with others—such as following the law, keeping your word, and so on—hard choices have to be made.
Thoughtful journalists sometimes do choose the value of revealing truth over the value of confidentiality. One example: Testifying to the Iran-contra committee in 1987, Oliver North defended lying to Congress by citing what he claimed were congressional leaks of classified information. As an illustration, North cited details about the capture of the PLO terrorists who had hijacked the Achille Lauro in 1985. Jonathan Alter pointed out in Newsweek that North himself had leaked the details of that military operation to a Newsweek reporter. Alter's argument for outing North was that reporters who knew North was the leaker shouldn't be party to his deception.
There are other examples of journalists unilaterally declaring a source's promised anonymity inoperative. In his book Uncovering Clinton, Michael Isikoff put Linda Tripp's off-the-record dealings with him on the record. His argument was that Tripp's grand jury testimony about their conversations had subsequently become public, so it would be ridiculous to continue to suppress his version. Bob Woodward was always planning to name Deep Throat after he died. His argument was the interest of history. In 1988, Milton Coleman of the Washington Post revealed that Jesse Jackson had used the terms "hymie" and "hymietown" in a private conversation with him. His argument was that prejudice on the part of a presidential candidate was too important to keep secret. In various instances, publications have fingered campaign operatives attempting to leak negative stories about opposing candidates, on the theory that the fact of the dishing was dishier than the dirt being dished.
The argument for reporters outing the Plame leakers combines elements of several of these examples, and is slightly different from any of them. Talking to a source "on background" cannot be an offer of blanket immunity in all circumstances. If someone goes off the record to offer a journalist a bribe, or threaten violence, the importance of what the source has told a reporter may simply supersede the promise to keep mum. To take an extreme example, any reporter of integrity would reveal off-the-record information about an upcoming terrorist attack or serious crime. In the Plame case, the crime under investigation consists in speaking to reporters. No plausible shield law would, or should, protect a reporter in this situation, because there's no way for a prosecutor to develop a case against a perpetrator without evidence from the recipients of the leak. The New York Times might argue that the law against leaking undercover CIA agents' names should be repealed (as Christopher Hitchens does here). But the paper can't coherently argue that the law should be enforced and that its own reporter should prevent its enforcement.