The Yale Free Press

Anyone who has seen law & order knows about “pleading the Fifth.” American citizens have a constitutional right not to incriminate themselves in court. Lawyers, doctors, priests, and spouses share a similar right not to have to testify in court. For a while it also seemed safe to add another profession to that list: journalist. However, the fallout after Robert Novak leaked Valerie Wilson’s secret identity as a CIA agent has ignited a debate on journalist shield laws.

In 2003, Robert Novak wrote a syndicated column about Joseph Wilson’s trip to Africa to determine whether Iraq had bought uranium. While Novak was focused on WMD’s, others were focused on the background information. “Two senior administration officials” claimed that Wilson’s wife instigated the trip to Africa. More importantly, Novak also included the statement that Wilson’s wife was “an Agency [CIA] operative on weapons of mass destruction.”

This last claim later became evidence of a crime because of the illegality of intentionally leaking a covert CIA operative’s identity. Novak presumably did not realize that Valerie Wilson was undercover, but the two senior administration officials would had to have known the confidentiality of what they revealed.

Novak never revealed what if anything he told the special prosecutor, but the media got into a frenzy over a court order for two fellow journalists, Mathew Cooper (of Time Magazine) and Judith Miller (of the New York Times), to testify about their sources. Cooper eventually testified about his anonymous sources (it was revealed that Karl Rove spoke to Cooper over the phone before he wrote his article) after claiming he had gotten personal permission. Judith Miller, on the other hand, went to prison for contempt of court. Miller never wrote an article leaking Valerie Wilson’s identity, but she did do unpublished research and said she wanted to respect her agreement not to reveal her source.

Novak was not the first journalist to use an anonymous source. Bob Woodward and Carl Bernstein were hailed as heroes for exposing Watergate with the help of their own anonymous source, Deep Throat. The reporters eventually found other evidence supporting their claims of a Nixon Administration cover up, but they would never have gotten anywhere without Deep Throat’s guidance. Without the option of using an anonymous source, Woodward and Bernstein would have been unable to inform the public of this scandal.

The Supreme Court has also maintained a strong role in maintaining an uncensored press. In Near v. Minnesota (1931), the court ruled that the government could not stop a newspaper from publishing an article unless it posed a “grave and immediate danger to the security of the United States.” This national security exception was put to the test in 1971’s New York Times v. United States. The New York Times and the Washington Post got copies of a government sponsored study critical of the United States’ involvement in Vietnam and started publishing articles about these “Pentagon Papers.” Attorney General John Mitchell tried to stop the articles from being published by claiming they were a national security issue. The New York Times won the case, though, because of the importance of a free press and the public’s right to know about its government.

These precedents, however, do not strictly apply to the case of an anonymous source. In the “Pentagon Papers” case, the government wanted to stop an article from ever being published, while no one has tried to legally stop a newspaper from publishing any of the articles related to Valerie Wilson’s outing. Instead of trying to hide information, the government wants to expose it.

However, as the case of Deep Throat illustrates, forcing journalists to reveal their sources is an indirect form of censorship. If the government can force a reporter to name his source, then sources like Deep Throat would be less willing to talk, which in turn would mean important stories like Watergate might never have been told. This is a problem like that of a poll tax. The state generally has the right to tax its citizens but not when it interferes with the right to vote. Similarly, the state often has the right to compel people to testify but not when it might limit the public’s right to be informed.

The need to make people comfortable talking to the press also means that it is important to protect all anonymous sources and not just desirable sources. Deep Throat turned out to be a whistle blower revealing a corrupt administration while many speculate Karl Rove outed Joseph Wilson’s innocent wife as punishment for an op-ed piece critical of the Bush Administration. If the law protected just the Deep Throats, important sources might still fear being treated like a Karl Rove.

The Supreme Court has so far been unwilling to set a clear precedent allowing journalists to offer their sources anonymity. Until it does, states lacking journalist shield laws should pass them, and so should the federal government. Perhaps the special prosecutor in Judith Miller’s case did the country a favor by showing the need for such protection.

Aaron Barnet is a sophomore in Trumbull College.