E-Mail This Article to a Friend Secret agents (continued)

In agreement with Corn is Alex Jones, director of the Joan Shorenstein Center on the Press, Politics, and Public Policy, at Harvard’s Kennedy School. "I do regard releasing Valerie Plame’s identity as a CIA agent, outing her, a genuine secret that was disclosed. This is not about politics," Jones says. "It seems to me that it’s pretty fundamental that when you’re given the name of a covert CIA agent, you might say, ‘Wow, what a great story,’ but as a citizen you would say, ‘Wait a minute, I can’t do this.’"

Of course, the journalists-behaving-badly angle is hardly a new story line. And to the public, already wary of the news media’s over-reliance on anonymous sources and overweening arrogance, the claim put forth by the likes of Matt Cooper and Jim Taricani — that what they do is so important that they should be exempt from the obligations of ordinary citizens — might ring pretty hollow. After all, the First Amendment is for all of us, not just for those who work for major news organizations. Justice White, in Branzburg, noted that carving out any sort of special privilege for reporters would necessarily involve defining who is and who is not a journalist — "a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."

To put it in a 21st-century context, the anchor of a major television news network should enjoy nothing more in the way of First Amendment protections than does a lonely blogger posting to the Internet in the attic of her parents’ house.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, has thought about that very subject. Dalglish forthrightly argues that reporters should receive special privileges, because "the press is the only entity mentioned in the Constitution. And the whole idea behind that is to make sure that there is a free flow of information to the public." But Dalglish would define who is entitled to those special privileges not by who they are, or whom they work for, but by what they do.

It’s a crucial difference. Several years ago, a Houston-area woman named Vanessa Leggett was jailed for a mind-boggling 168 days for refusing to turn over tapes and notes she had compiled in the course of interviews conducted for a book she hoped to write about a 1997 murder. Leggett’s situation was made infinitely more difficult because of questions about whether she was a "real" journalist, worthy of the same protections as, say, a reporter for the Houston Chronicle. She was finally released in early 2002 after the grand jury investigating the murder was dissolved.

Dalglish’s answer to Leggett’s dilemma is that protections should be extended to anyone engaged in journalism — as Leggett surely was. "Her intention all along was to publish a book for public consumption," Dalglish says. Or as Leggett herself has been quoted as saying, "It’s not the institution of journalism that needs to be protected, it’s the act of journalism."

EVEN THOUGH it’s been more than 19 years since she nearly went to jail for refusing to name a confidential source, Susan Wornick’s memory of that time remains vivid. "I was an hour away from going to MCI-Framingham," says Wornick, an anchor and reporter for Boston’s WCVB-TV (Channel 5). She calls the experience "terrifying," explaining, "I knew there was nothing that was going to happen to me while I was in jail. But what I was scared to death of was losing my freedom."

Wornick got lucky. At the last minute, her source — a man who’d told her in an interview, with his back to the camera, that he’d seen six police officers stealing from a Revere drugstore — came forward to spare Wornick a three-month prison sentence. But any sense Wornick might have had that her battle had struck a blow for press freedom has long since dissipated. "It’s truly unbelievable to me that here it is 2004, and we’re still talking about these contempt-of-court charges against reporters in America," she says.

Wornick handles sources differently since her near-jailing. "I would never in a million years, based on what happened to me, pass on a great story, an important story," she says. "What I do that is different now, in every case, I still promise anonymity. However, what you need to know as my source is the potential of what can happen. This can become a big news story, this can become a big issue, and how are you going to feel personally? I’ll go to jail. Will you let me go to jail? That’s what it comes down to."

Perhaps that, more than anything, gets at what is wrong about all this. Depending on how a particular judge at a particular time in a particular place interprets Branzburg, reporters may very well be required to disclose the identity of their sources. But guess what? They’re not going to. No one wants to go to jail. But for a reporter, doing time on a matter of principle is a great career move. More to the point, any reporter who would give up a source in order to avoid jail is quickly going to become an ex-reporter.

Last week Joseph diGenova, a former US attorney, appeared on The NewsHour with Jim Lehrer to argue against the notion that reporters have even a qualified privilege to withhold their sources’ identity. "But I must say I understand the position of the journalists here," diGenova added. "And as someone who has worked with journalists over the years and talked to them and given them information, I certainly am not going to talk to journalists who aren’t going to go to jail for me. I’ll tell you that right now." No kidding. And that, really, underscores the absurdity of this entire mess. Matt Cooper’s not going to give up his sources. Nor is Jim Taricani. Nor would Susan Wornick have.

The worst thing that you can say about a law is that it doesn’t work — that no one will obey it and that, in fact, defying it only adds to one’s prestige and reputation. One suspects that Judge Hogan knew Matt Cooper wouldn’t comply with his order even as he was affixing his signature to it. Hogan’s reasoning may have been correct. But it’s hard to see how it moved the Plame investigation along, advanced the cause of justice, or did anything other than provide a little cover for a probe that seems to be going nowhere.

Lucy Dalglish’s fear is that "the only people who end up in jail as a result of this whole thing are the reporters." For George W. Bush, it would be the perfect outcome to an embarrassing episode. This may be a small-minded wish, but if Matt Cooper serves any time in prison, I hope Bob Novak has to serve one day more.

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his Media Log at BostonPhoenix.com.