Reporter Malpractice, Texas Hold-em & the Plame Game

– Reporters are obligated to the truth, and allowing themselves to be pimped by those who would use them as tools against the truth is a crime against the profession and the society it serves. Protecting that which you are bound to expose is malpractice.

By Sam Smith

(July 18, 2005) -- Judith Miller is in the slammer, and the consensus among journalists and news agencies is that her jailing represents a dangerous assault on press freedoms. Most commentators rightly note that confidentiality is essential to effective investigative reporting, and the Cleveland Plain Dealer's decision to kill two stories over fear of legal retribution is offered as evidence that the nuclear winter is upon us already.

However, it strikes me that the Plame/Miller/Cooper debacle is being framed in way that tells us more about the current psychology of the news industry than it does the actual merits of the case. In short: In what way is the Judith Miller case (and the one involving Matt Cooper) even about journalism?

First, the reporter must be acting in his/her capacity as a journalist. Obviously, whatever privileges a reporter may enjoy, they do not extend beyond professional "on-the-clock" activities (not that journalism is a 9-to-5 job).

Second, the source must be acting in the context of story development. "Source" isn't a job title, and just because someone was a source last month and might well be a source again next month, it doesn't mean that the person is a source this month if there's no story being pursued. Source confidentiality isn't like popularized conceptions of diplomatic immunity.

Third, the source must be providing information on an actual story. If there is no story, there is no source in a particular instance.

While acknowledging that this case is far too complex to be thoroughly covered in a few hundred words, and that there's still a lot we don't know about what exactly happened, enough information exists for us to suspect that Miller's source probably doesn't have a legitimate claim to confidentiality, and most of the problem lies with the second and third conditions.

Let's start with the source -- call him Bob Whitehouse. Bob has been a valuable source in the past, and a high-powered reporter like Judy has every reason to believe he'll be an essential source in the future. So Bob and Judy are talking, and Bob tells Judy that Valerie Plame/Wilson is a CIA operative. In doing so, Bob either commits a serious felony or takes a vindictive cheap shot at a hated administration critic, depending on your interpretation.

It's not news that the U.S. has an intelligence agency, and it's not news that some of the agencies employees are double-naught spies. Further, the name of Valerie Plame isn't news, either -- there's nothing about her that makes her identity lede-worthy according to any standards of journalism I've ever seen. (If the agent were, say, Michael Jackson, that might be news, especially in today's Big Media world.)

At this point, there isn't a story in what the contact is offering (the New York Times never ran a story suggesting that this was news); the contact's actions themselves do constitute a story ("Did White House official violate U.S. law in outing CIA operative?" is showing serious legs); and finally, the contact has implicated the reporter in an expansive web of intrigue that may result in the reporter going to prison.

This last part is key because it goes to the core of the implicit contract between reporter and source. A great deal of attention has been focused on the misguided idea that naming Whitehouse would violate a sacred trust, but this view misunderstands the responsibilities both parties incur when such an agreement is struck.

When Bob Whitehouse dropped Plame's identity on Miller, he immediately breached his contract with her. An agreement of confidentiality binds both parties, not just the reporter. When the source swears the journalist to secrecy, he/she incurs an obligation to behave ethically, as well. A reporter's good faith oath isn't a license of indenture, and it may not be played in bad faith to place a reporter in undue jeopardy. If Whitehouse breaks that trust, the reporter is no longer under any obligation whatsoever to protect his name.

Miller needed to step back and say "thanks Bob, but no thanks -- you're the story now." Reporters are obligated to the truth, and allowing themselves to be pimped by those who would use them as tools against the truth is a crime against the profession and the society it serves. Protecting that which you are bound to expose is malpractice.

As somebody who has given and honored his word many times, I can respect that somebody is willing to go to jail rather than do something they see as reflecting on their reputations. But in doing so, you may be acting on a personal principle, not an industry code. The distinction is important.

There are few things in our entire culture that are more essential than the freedoms codified in the 1st Amendment. Press freedom isn't just important to democracy, it's a prerequisite. Further, I'm all in favor of doing anything we can to encourage whistle-blowers in this age of high governmental and corporate kleptocracy. Most editorials and comments I'm seeing this last week or two insist that the Plame case is about just these issues.

I don't buy it. From where I sit, Miller went to jail not to protect the name of a source, but to protect the name of a former source who may be a felon.

I share the concerns of journalists across the country. The press is under attack, and it's a war that must be won. But this isn't very good terrain from which to launch a counter-attack.

To put it in Texas Hold-em terms, if you're going to go all-in, you better have something more than a pair of deuces.

This commentaryoriginally appeared in the Editor & Publisher online edition.