Today's New York Times editorial argues for the passage of a federal shield law that would allow reporters to keep their sources confidential, proscribing law-enforcement agencies from subpoenaing journalists to reveal sources unless they can prove imminent danger as a result. They use the current Plame investigation as proof of the necessity for such protection:

Witnesses spoke of the dozens of subpoenas that have been issued to journalists in recent times and the half-dozen or more reporters who have been found to be in contempt of court for doing their jobs - some journalists, like Judith Miller of The Times, have actually been jailed. As Mr. Dodd pointed out, the idea that jailing reporters will inhibit journalism is not a theoretical worry. Norman Pearlstine, editor in chief of Time Inc., testified yesterday that since his decision to turn over notes in the Valerie Wilson case to the federal prosecutor, Time reporters had shown him mail "from valuable sources who insisted that they no longer trusted the magazine." The Cleveland Plain Dealer has announced it will not publish two investigative reports because they are based on leaked documents and the paper fears the possibility of subpoenas. Its editor said, "Jail is too high a price to pay." We regret that decision, but it should at least ring alarm bells for Congress.

The amendments added this week to bills before the Senate and the House would provide for the forced disclosure of confidential sources "to prevent imminent and actual harm to the national security." It is a narrow exception that journalists should support, because as William Safire, the retired Times columnist, testified yesterday, "We are not seeking an absolute privilege." We second Mr. Safire's caution that an imminent threat means an actual and urgent threat, not a potential threat.

This argument has two major flaws, perhaps three. First, as we saw after 9/11, putting the burden of proof on the government to prove "an actual and urgent threat" means creating a threshold that will for all practical purposes never be met. What constitutes a "threat", let alone an "actual and urgent" kind? If the Times defines that as potential loss of life, that would be very difficult to do unless the original report indicated that the source wanted to kill Joe Doe at 11 pm at the Nite Owl Cafe tomorrow. One would hope that a journalist would have already called the cops and informed them of that. Waiting for a subpoena makes attempts at prevention somewhat pointless.

The second major flaw is the idea that the media exists as a quasi-governmental association that can blithely hand out free passes from investigators to both itself and its sources. Journalists do not exist as a higher class of citizenry as the rest of us. If someone were to tell me of a conspiracy to ship weapons to reactionary anti-tax zealots in Minnesota, complete with times, dates, people, and places, and I didn't bother to tell the FBI or local police about the information, I could be held as a material witness or even accomplice. If I refused to testify, I could be charged with obstruction of justice. Why would that change simply because I can get a by-line at the Times?

Third, and I believe most telling, the entire argument hinges on the use of anonymous sourcing, which experience tells us that the media treat very inconsistently, especially in this case. As I wrote in the Daily Standard yesterday, the Times itself -- especially the editorial board -- has no problem attacking sources when it their information doesn't fit their predetermined narrative and demanding their prosecution for leaking:

In July 2003, a rogue CIA operative, hired by his analyst wife at the agency, was leaking false information about war intelligence to national newspapers. When that didn't raise enough eyebrows, he went public, misrepresenting his findings and the nature of his selection for the assignment. Having a CIA operative suddenly take political potshots at the administration called into question whether the White House had lied about intelligence or the ambassador was telling the entire truth himself. Cooper went to his best sources to find the answer to the question, and he got the right answer. Sounds just like Watergate, except in this case, the White House told the truth while low-level elements at the CIA appear to have twisted intelligence reports into lies to undermine the government--a clear abuse of their power and position. An anonymous source had once again proven its value . . . right?

Not exactly.

Their demand for a shield law to protect journalists while spending most of the past ten days attacking Karl Rove for trying to point out that Wilson repeatedly lied and spread misinformation about his CIA assignment stretches hypocrisy to new limits, even for the Paper of Record.

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