Asked what he would do if he was forced to choose to betray either his friend or his country, an English wit replied that he hoped to God he would have the good sense to betray his country. This was something of a trick question anyway, the answer to which was sure to leave in its wake scads of contentious people. But the answer had illuminated what we would now call the gentleman’s “priorities.” Though no rational country would willingly have the Englishman as a citizen, who would not want to be his friend?
A bill sponsored solely by Senator Chris Dodd, the “Free Speech Protection Act of 2004,” puts journalists in the same uncomfortable situation as the hapless Englishman. Compelled to betray a source during a legal proceeding by disclosing his identity or maintaining silence and subverting justice, what would you do?
How do you like your babies -- boiled or fried?
Presently, journalists need not answer such stupid questions because the law is very plain on the point: Journalists may be found in contempt when they withhold information that may – just to pick one example out of the hat – result in the non-prosecution of the Englishman who refuses to betray his friend and consequently betrays his country.
Every citizen is under the obligation to say the truth when sworn to do so under oath. Dodd has yet to tell us why journalists should be exempt from a solemn obligation that, with few exceptions, binds all other citizens. The law, when it is not an ass, very sensibly makes exceptions: Information gathered by priests during confessions is exempted; husbands and wives are not forced to testify against each other; and persons may not be forced to give testimony at trial against themselves, if they plead the Fifth Amendment.
Dodd’s bill prevents federal agencies from sanctioning information providers who will not disclosure their sources. But the bill allows federal entities to compel other testimony under stringent conditions. Disclosure of information may be compelled only by a court, and only if the court finds that the party seeking the information has established by clear and convincing evidence that “(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Federal Government that has the power to issue a subpoena; (2) the news or information could not be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure.”
Even from a journalistic point of view, the bill is mischievous because it makes the journalism industry beholden to Dodd and other legislators foolish enough to vote to affirm a bill that provides immunity for sources, elevating them far above the position once enjoyed by Caesar’s wife, universally acknowledged to be above criticism.
The Dodd bill, worth its weight in gold, is a huge payout to journalists, is it not? Usually, such favors are bought by special interest groups in the form of campaign contributions, but journalists may reward their pet politicians in a far different coin – by providing to them either a good or a non-critical press.
An immunity provided by politicians to the media is no less corrupting than a money pay out. Joseph Pulitzer, after whom the coveted Pulitzer Prize is named, used to say that reporters should have no friends because he understood that gratitude corrupts. And gratitude on such a massive scale corrupts absolutely.
Recent scandals in the Bush administration are instructive. If media sources could not be compelled to disgorge information necessary for prosecution, no one in the Bush administration could ever be frog marched off to jail in handcuffs for having outed a CIA agent; Times news reporter Judith Miller would never have been reproved by her editors for having become “entangled” with her source; her editors would not have been reproved by political columnist Maureen Dowd for leaving their reporter untethered; and the rest of us would have missed a farce of rare proportions.
Bad bills can only have bad consequences. Dodd’s bill, unnecessary and fraught with unforeseen dangers, ought to be frog marched off the legislative stage, preferably in handcuffs.