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by James Taranto
https://judithmiller.com/520/ive-got-a-secret
Last night found us at a Manhattan Institute symposium, where two distinguished journalists--Judith Miller, formerly of the New York Times, and Gabriel Schoenfeld, of Commentary--debated whether there should be a federal "shield law" protecting journalists from having to testify about confidential sources. (Miller spent almost three months in jail in 2005 for refusing to testify in the Valerie Plame kerfuffle; Schoenfeld is a frequent critic of Miller's former paper's reporting on national security secrets. Both are occasional contributors to The Wall Street Journal's editorial pages and this Web site.)
The House passed a shield bill, dubbed the Free Flow of Information Act, by an overwhelming 398-21 vote in October, but it has not made it to the Senate floor. Stuart Karle, then general counsel of The Wall Street Journal, made the case for a shield law in a 2005 Journal op-ed. Schoenfeld made the case against in The Weekly Standard last fall. Miller addressed some related questions in the Journal in February.
On this subject, this column has mixed sympathies. The prospect of government (or private litigants) compelling journalists to testify about their work does seem a danger to freedom of the press. And the government probably does keep too many secrets, a point on which Schoenfeld agreed with Miller.
On the other hand, we tend to agree with Schoenfeld that some news organizations, the Times in particular, have been cavalier about national security, possibly for partisan reasons. (Our suspicions about journalists' motives were heightened by the lukewarm support Miller received from within the profession when she went to jail to protect a source who was a loyal member of the Bush administration, and by the Times editorial page's cheerleading for the investigation of the "leak" that led to Miller's jailing.) And a law that would protect the use of anonymous sources could end up encouraging lazy journalism of the sort we note frequently in our "Reliable Sources" feature.
Something else had always bothered us about the idea of a shield law, and as we pondered the debate on our way home, it crystallized. There is something paradoxical, even a tad Orwellian, about the title of the bill, the "Free Flow of Information Act." The act would not declassify or otherwise release to the public a single shred of information. Its direct effect would be the opposite: It would grant the protection of federal law to a new category of secrets.
If "the free flow of information" were always and everywhere the uppermost value, there would be no reason to object to compelling journalists to testify. Indeed, such testimony would be desirable, since it would add to the flow of information.
Of course, context is crucial. Miller and other shield-law proponents argue that protecting the identity of confidential sources promotes the free flow of information by allowing "whistleblowers" to come forward without fear of retaliation. That is, journalists justify keeping their secrets by asserting that they are doing so to serve a greater public good. That is the same claim the government makes to justify keeping information confidential.
The Free Flow of Information Act, then, really is an effort to shift control of information from the government to journalists, enhancing the latter's gatekeeper role at the expense of the former's. Maybe this is a good idea, but to our mind it is less than axiomatic that journalists can be counted on to act in a more public-spirited way than government officials do.