Contract Law's Lesson for Judith Miller

[Tamyrlin79]

Crossposted at Daily Kos

Cutting through all these "press privilege" claims, the essential key to understanding the whole Judith Miller affair (and why she was wrong...) can be found in contract law.

The contract in question here is that between the reporter and her source. In the instant case, the reporter guarantees the source anonymity in exchange for true information. This is the basic exchange of the contract in question. Matt Cooper, in his recent statement, was relieved from this contractual obligation by the other party. This is a valid cancellation of the contract. But it is not the only means.

There are essentially two situations whereby this particular type of press/source contract, after being entered into, can be voided by the parties themselves:

1. The source relieves the reporter of the obligation to anonymity in the contract (as with Cooper).

2. The source's information is false. Thus, the source did not deliver the promised good (valid information) in exchange for the promised anonymity. The reporter in this situation has no duty to then defend the source's credibility with a shield of anonymity while sacrificing his own.

Now, both of these means of "getting out" of the contract have to do with the terms of the contract itself. But, an essential element in every contract is that it cannot be contrary to public policy. If the subject matter of a contract is illegal, you cannot enforce the contract. For example, one cannot make a contract to sell your children into slavery, since slavery is against public policy and such a contract is null and unenforceable in any court of law. For a more modern example, you can't create a valid contract to sell drugs... Well, you can make the contract, but if the drug dealer takes your money and doesn't deliver the drugs, you can't sue the guy in court for damages because the contract isn't enforceable (and might be used as evidence to convict you for participating in the illegal drug trade...).

With the Miller/Cooper case, this is exactly the kind of contract we have here. It is contrary to public policy, and while Cooper and Miller have every right to make and enter into contracts like any free citizen does, they have no reason to expect that a court will respect a contract that is contrary to public policy. This is well-established contract law.

Now, what is the public policy here? First, you cannot enter into a contract that allows for the passage of information that it is illegal for the source to pass, as in this case. This rule would, if applied strictly, prevent any leaking of classified information from the government. BUT, the law also recognizes that there are situations when it might be permissible for this type of information to be released. Thus, the law essentially carves out a "whistleblower exception" to this rule, meaning that a whistleblower can reveal information that the public has a right to know or that reveals some corruption or crime. This is essentially why FBI agent Colleen Rowley legally invoked "whistleblower protection" in her testimony to congress. Thus, if information is classified for political reasons only, not for valid security reasons, then the leak can be legitimately protected. Or, if the information reveals/proves a crime, then this is also in the public interest and justifies such a leak. In these cases, the leak can be protected and the contract is valid under the whistleblower exception.

Thus, if Valerie Plame had been outed as part of a whistleblower-prompted investigation into CIA corruption, that would be one thing (though even then, the agent's names could be redacted and only given to a subsequent grand jury when it investigates the crime alleged...). But, this is not the case in the current circumstance. The classification of Valerie Plame's status was not classified for political/ideological reasons only, the revelation of her name served no public purpose (rather, it served a private purpose...), and the disclosure revealed no crime or corruption. Rather, it was a crime in and of itself because it is specifically illegal to leak that kind of information. There is simply no conceivable situation where the revelation of specific agent names would be beneficial to public policy, short of knowledge that, for example, an agent is actually a double agent for a foreign power. If this were true, then leaking the agent's name might be justifiable because it exposes the crime and corruption of that agent. This kind of service to public policy is a necessary element to any valid claim to the whistleblower protection exception. Therefore, the leak in this instance cannot be justified under any legal principle that would give it some privileged status and make Judith Miller's contract with her source a valid one.

Thus, we come to the inescapable conclusion that the contract between Judith Miller and her source (and Matt Cooper, though he got out of it via another means) was contrary to public policy, and the court was absolutely right not to respect that agreement between the reporter and source.

When reporters are now claiming infringements on freedom of the press, what they are ultimately claiming is that reporters have the right to make this kind of reporter/source contract. However, no one is disputing that. What the press needs to realize is that these contracts, like ALL valid contracts, cannot violate public policy and then reasonably be expected to be respected and enforced by a court of law. So, what is needed is not a course for the nation in the freedom of the press. Rather, the press needs a course in contract law so that they understand what they can and cannot legitimately agree to with regard to their sources and then expect it to be legally enforceable should questions subsequently arise about it.

So, it isn't that the press is not free. It is that the press, like any free person generally, is not above the law, in this case well-established contract law. More importantly, this is a good, general standard for those of us out there who consider ourselves "citizen journalists" and who do not have the general press credentials that might allow us to invoke some official kind of "press privilege". Rather, this is a simple, contractual standard that applies to everyone and anyone who is trying to get information for public dissemination. And that kind of general, basic standard is a good thing for journalism and all who practice it, be they bloggers or reporters at the New York Times.

[MsUnderstood]

1. THANK YOU for explaining this

I felt it was wrong that the press DEFEND Judy Miller but couldn't express it. My paper this morning defended her as a journalist and summed it up as a sad day for the constitution.

This is what they should have printed instead!

[ThomWV]

2. You Can Not Have A Contract For Illegal Purpose

And knowing disclosure of the information would be an illegal act so no contract can have been entered into.