Let’s begin by reiterating the Ethics Scoreboard position, articulated in detail elsewhere on the site, that journalism’s fanciful duty of confidentiality to anonymous sources has little to do with ethics or the public good and everything to do with making it easier for reporters to get information. Journalists believe their profession should have the law’s consent to function essentially as an information equivalent of money-launderers: individuals who can’t openly reveal a secret without suffering dire consequences for violating the terms of their employment, a contract, a promise or the law should be able to do so without penalty simply by using a reporter as a conduit.

Under this system, individuals can make reporters their agents for the purpose of revealing information they have an obligation not to reveal, yet both the agent and the principal will be spared the fair consequences of the act. A quick seven reasons why this is bad ethics and bad policy:

1. It encourages “half-heroes” and devalues courage. Those who want to expose an alleged wrong by violating a trust should have the conviction in the rightness of their act to be willing to be accountable for it. If they aren’t, both their motives and their judgement are open to question. Trustworthiness is a core ethical value, and someone who is tempted to break a trust should have to take the personal consequences of doing so into consideration.
2. It makes no distinction between virtuous leakers and malicious leakers, good public results and harmful ones, legal and illegal.
3. It provides an enticement for individuals to violate valid obligations.
4. It impedes law enforcement.
5. It undeservedly elevates journalism to the status of professions like law, medicine, psychiatry and the clergy. All of these have privileges based on a recognized and historical public interest in serving the legitimate needs of the citizens whose confidences are being protected. But the privilege claimed by journalists is merely a device to serve the journalist’s need for information sources. This is not a legitimate basis for a professional privilege.
6. The claimed privilege is inherently hypocritical. It says, essentially, that journalists should be permitted to assist and encourage others in breaking their confidences, but that a journalist’s confidences can never be broken. In other words, other people’s obligations of trust are subordinate to a reporter’s obligations of trust. In the timeless words of the playground: “Who says?”
7. All professional privileges have exceptions. Even if there was a journalist privilege, it should not extend to information that was revealed illegally or in violation of professional duty.

So how can both Time Magazine and Judith Miller, apparently standing on opposite poles of the issue of journalistic privilege, be ethics heroes?

Time is a hero for having the courage to break with the party line when its media cohorts are just dead wrong. The magazine turned over the notes of its reporter (relating to sources interviewed about Valerie Plame’s “outing” as a CIA operative, supposedly as part of an attempt to devalue her husband’s status as a critic of U.S. Iraq policies ) who was threatened with jail time for refusing to do so himself. Its stated position that even news magazines must comply with the law is beyond legitimate argument, but Time had to know that it would be subjected to withering criticism from the journalistic establishment, and so it has. Washington Post media watchdog Howard Kurtz reports that in the midst of all the dire predictions of a “chilling effect” on whistle-blowing (while there seems to be little discussion about the likely benefits of a “chilling effect” on administration officials tempted to use classified information to get even with critical former ambassadors), Time is being accused of “corporate cowardice.”

Well, that’s certainly a possibility. Time is part of a big corporation, and the prospect of large fines and protracted litigation undoubtedly wouldn’t please stock-holders. One could argue that Time’s management was thinking about the bottom line and their jobs rather than the rule of law. But that argument cuts both ways. If Time’s refusal to wrap itself in the hallowed journalistic myth that even criminal sources can’t be revealed results in a precipitous drop in its prestige and readership, this presumably will also feed stockholder wrath. As a general principle, when someone does the right thing the Scoreboard will give them credit for it unless there is convincing evidence that the act is cynical and self-serving. We’ll never know for sure, unless, of course, a Time executive violates his employment agreement and leaks an account of the decision-making process to the New York Times, secure in the belief that his identity will be protected.

But in that instance, the Times reporter wouldn’t be protecting a criminal. Times reporter Judith Miller, however, is, by her refusal to assist Federal prosecutors in their efforts to find all sources who can shed light on the Plame affair. Whether Miller’s sources actually broke a law or not (we don’t know whether one of the sources she is protecting is Robert Novak’s original leaker), they have information that may be valuable to a criminal investigation.

For refusing to divulge the sources after being ordered to do so by a judge, Miller is apparently going to jail. That act is classic civil disobedience, and civil disobedience in support of both a principle (a dubious one, but a principle she believes in) and a promise: she promised her sources that she would not reveal their names. It was a risky promise, to be sure…it is always rash to promise to do something when a judge can later demand that you do differently. But she made it, and risky or not, she’s willing to go to jail to fulfill it. We disagree with her claim of privilege, but she certainly is asserting it in a courageous and ethical manner.