Guest Columnist Dominic Gentile: Americans should support protection for journalists

Sunday, Oct. 23, 2005 | 10:17 a.m.

Recently several journalists in the United States have been held in contempt of court and jailed -- notably the New York Times' Judith Miller -- for refusing to disclose to prosecutors and grand juries the identity of their sources of information.

The media has always railed against such treatment of its members and maintained that the free-press clause of the First Amendment to the United States Constitution forbids such action by government. But the federal courts have not recognized any privilege that would protect a journalist from revealing sources who were promised confidentiality in exchange for their information.

Although efforts are being made to persuade Congress to pass legislation that will create protection for journalists who refuse to break that promise, there is a concern in the media that without public support the proposal will perish.

Since the public seems to have always had a healthy skepticism of both government and media credibility, why should the American people support such protection?

The answer is simple. The framers of the Bill of Rights didn't trust government, even the one that they were operating, and built into its design a means of protecting citizens from abuses of power by those who possess it.

They were aware that public skepticism of government is natural, and that such skepticism is important to the preservation of a democracy. They wanted to perpetuate it.

Their belief was strong that only access to a free flow of information can prepare the citizenry to make intelligent decisions regarding how its government is being operated. Only by being allowed to shop in a fully stocked marketplace of ideas can a citizen make intelligent choices as to how to grade public officials.

Our country's founders set up a system that preferred elections to divine right rulers or violent revolutions and knew that a free press -- despite the imperfections, political biases and fallibility of its participants -- was the best vehicle available to inform the electorate about how its government is operating.

There is a large measure of irony in prosecutors jailing journalists for refusing to disclose sources. Law enforcement officials themselves utilize confidential informants in their investigations and are protected from disclosing their identity to anyone unless they were a witness to the crime itself.

The argued justification for this "informer's privilege" (it belongs to the informer, not the policeman) is that without keeping their identity confidential people will be unwilling to report unlawful activity for fear of retaliation from the person whose conduct they are revealing. But who is going to report on the secretive, corrupt or illegal activity of the "public servant" gone astray if they think they will be exposed? Who will not be afraid of the consequences that will flow from "outing" a corrupt but powerful member of the executive, legislative or judicial branch of government? And who is going to make that revelation to a prosecutor who has been appointed or promoted by the corrupt person or one of his political allies?

Publishers, editors and journalists are not all possessed of moral rectitude, MENSA-level intelligence or papal-quality infallibility. Thus the adage, "You can't believe everything that you read or hear." But the fact that the news media isn't perfect and doesn't always get it right is not a justification for weakening its ability to gather and disseminate information to the public about how those who operate the institutions -- both private and public -- that govern our nation and its economy are performing.

For better or for worse the news media has the role of a watchdog against tyranny and corruption and is necessary to the maintenance of a free society. Just as the watchdog is responsible for barking and the master is responsible for deciding why, so must the media be relied upon for obtaining and circulating the information and the citizenry responsible for sorting it out and evaluating it.

Congress should recognize that the First Amendment protection of a free press is not designed for the press but for the governed. If a journalist has obtained information in exchange for a promise of confidentiality, it is the public that benefits from it, not the media. Regardless of the level of esteem in which the public holds its elected officials or the media, it wants and needs the information.

The First Amendment guarantee of a free press is an empty promise if people will be afraid of exposure for revealing the misdeeds of the rich and powerful. Congress must create protection that encourages them to come forward and encourages the journalist to gather and disseminate what they have to say.