TedPage: Anonymous Sources

Today Lewis Libby was charged with misleading investigators of the Plame leak. The investigator, Fitzgerald had a press conference announcing this and was asked a question about the NY Times reporter Judith Miller being put in jail for an unwillingness to cite a source. Now, I'm a huge fan of the media being a 'forth estate,' although I don't know that they've lived up to that in the last few years. I want the press and free speech to be protected. I still think Fitzgerald made a good point:

I tell you, I will say this: I do not think that a reporter should be subpoenaed anything close to routinely. It should be an extraordinary case.

But if you're dealing with a crime and what's different here is the transaction is between a person and a reporter, they're the eyewitness to the crime; if you walk away from that and don't talk to the eyewitness, you are doing a reckless job of either charging someone with a crime that may not turn out to have been committed -- and that frightens me, because there are things that you can learn from a reporter that would show you the crime wasn't committed.

What if, in fact, the allegations turned out to be true that he said, Hey, I sourced it to other reporters, I don't know if it's true ?

So I think the only way you can do an investigation like this is to hear from all the witnesses.

Patrick Fitzgerald, October 28^th 2005, Transcript

The distinction that he is making is that the reporter is a witness to the crime being committed. This much different than a Watergate or other such crime as the informant is only giving the reporter information about a crime that was committed. Here, giving the information is the crime in itself.

The problem is where the line needs to be drawn. Does Apple have the right to subpoena a media outlet to find out who leaked their latest design? Technically divulging a trade secret is illegal, and the reporter would be the only witness to that crime. I'm not interested in giving up freedoms to protect Apple's surprise factor.

So, in the end I have to conclude that it is best to leave sources as protected. Even though I realize Mr. Fitzgerald's point, and in many ways agree with it, any relaxation of the protection of all sources leads to abuse by corporations and over-zealous prosecutors. He does make a good point that that investigators would be remiss without asking for a reporter's testimony, and to try and reasonably compel them to give it, in cases such as these. I respect that fact that he argued before several judges before doing so, and think that should be required. I would agree that his actions were reasonable, he defended them to me too.