The Magazine

Journalists and Judges

Neither can be trusted to make good decisions about secrecy.

Dec 4, 2006, Vol. 12, No. 12 • By ROBERT F. NAGEL
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IN DEFENDING their decision to expose the Bush administration's secret bank-surveillance program earlier this year, the editors of the New York Times and Los Angeles Times emphasized that they had carefully weighed "the merits of publishing against the risks of publishing." Bill Keller and Dean Baquet earnestly assured readers that, had they been convinced "the risk of publication outweighed the benefits," they would have withheld the articles. Many people, aware of the obvious and powerful incentives that newspapers have in favor of publication, probably were not especially reassured by these protestations. Perhaps anticipating a skeptical reception, Keller and Baquet went on to suggest (among other things) that journalists, like the rest of us, do not want to be blown up by terrorists.

For anyone who nevertheless has doubts about turning over to reporters the job of assessing risks to national security, there may be comfort in the possibility that some existing or newly minted statute might make it a crime to publish information about secret antiterrorist programs. However, it is not clear that the judiciary can be depended upon to punish the publication of classified information. The courts, of course, would decide whether freedom of speech protects the publisher of such information. Interestingly, the relevant constitutional inquiry would be essentially the same one that Keller and Baquet said they had undertaken. Thus, an apparently sober and disinterested judiciary would review journalists' judgments about whether the value of the information outweighs the danger to the public of its disclosure. Unfortunately, judges are not especially good at risk assessment either. In fact, they wear many of the same blinders as reporters.

Consider the modern record of the Supreme Court. The most relevant decision is the famous Pentagon Papers case, decided in 1971. The justices were faced with executive department claims that printing this extensive history would do great harm, including disclosing military plans and the identity of spies, not to mention weakening the nation's alliances and prolonging the Vietnam war. The Court declined to prevent publication largely on the ground that the government had not demonstrated sufficient danger.

In itself, this result is not necessarily dismaying. But it is dismaying that the justices came to this conclusion without having studied--much less having had experts analyze--the 47 volumes at issue. Before oral argument was held, most of the justices had never even visited the room where the papers were being kept. Indeed, Solicitor General Erwin Griswold, representing the government at that argument, had not had time to read the documents. The case was effectively decided within a day or so after the argument, so there was no opportunity for any of the justices to study the massive report.

Whether the justices' guess about the risk of harm from disseminating the Pentagon Papers turned out to be right or wrong, the simple fact is that they were willing to decide matters of great complexity and urgency in a state of substantial ignorance. In such a state it was not difficult to dismiss, as several did, dangers that (while possibly extremely serious) might be somewhat remote or uncertain. If the majority had held that the First Amendment requires the public to accept the risk of any and all harms resulting from the publication of classified information, its extreme haste would have been unwise but legally irrelevant. Instead, the justices preferred to engage in a pretense of evaluating the danger to national security without actually doing any such evaluation.

Many legal analysts regard the justices' haste in the Pentagon Papers case as having limited significance because it was a consequence of the government's unusual effort to prevent publication (as opposed to punishing it afterwards). But the Court is often cavalier in its judgments about harm to the public. A much more ordinary case, decided in 2001, illustrates the point.

In Bartnicki v. Vopper, the Court held that under certain conditions it violates freedom of speech to impose money damages on a person who broadcasts the contents of an illegally intercepted cellular telephone conversation. (In this case, a radio station, reporting on a labor dispute, had aired a taped phone call between union officials, provided by an anonymous third party.) The Court had to acknowledge that, as Congress had found, publicizing private conversations does harm to private relationships; in fact, the damage has free speech ramifications because exposure inhibits the development of ideas that can take place during private discussions. But the Court declared that such privacy interests are less important than the public's need for information on a matter of public concern.

The justices, however, had no way of knowing how much harm to private relationships would be done by disclosures of this sort and hardly pretended to know. Nor did the Court have any way of knowing how much important information would actually be unavailable for public debate if a remedy for disclosure were allowed. The justices were not in fact balancing anything. They were, again, guessing.

The Court's casual evaluation of risk and benefit in these two cases is not inexplicable. In fact, many of the reasons journalists cannot be expected to assess risk accurately apply to judges as well.

The first reason is that both judges and journalists have highly important tasks and are keenly aware of this fact. Judges view themselves as responsible for upholding the rule of law, and reporters see themselves as responsible for making democracy work by keeping the public informed. The importance of these roles means that the imposition of costs and risks on others can sometimes be experienced as a virtue, as when a judge resolutely enforces the exclusionary rule by freeing a criminal, or when a journalist defames a public figure in the urgent pursuit of truth. The willingness to impose harm on others is seen as evidence that a judge is being just, or that a journalist is being courageous.

A second reason is that judges and reporters work in an adversarial atmosphere. Judges are accustomed to hearing one argument or account of events set against another, while journalists frequently play one source against another. Much of their work depends on evaluating what is presented. Both judges and reporters come to think that it is the responsibility of others to articulate and to persuade; if the argument isn't made or the data aren't produced, it does not go into the opinion or into the story. Adversarial instincts can thus lead to a conflation of the quality of an advocate's performance with truth. Bill Keller, for instance, dismissed the government's argument that the banking story would lead terrorists to change their financial tactics partly on the ground that "the argument was made in a half-hearted way." Danger, needless to say, can exist despite a weak presentation.

A third reason is that both judges and journalists sit in constant review of claims that government has failed in some way. Official omissions and mistakes, of course, are the gist of both lawsuits and newspaper stories. This bleak perspective naturally produces distrust and even disdain that can lead to the systematic under valuation of official predictions of harm. Indeed, the public editor of the New York Times, in a "mea culpa" last month, wrote that while he had "strongly supported the Times's decision to publish its June 23 article on a once-secret banking-data surveillance program," he had subsequently changed his mind. Rather than dispassionately weigh the risks and benefits of disclosure, "I fear I allowed the vicious criticism of the Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press."

Finally, while their roles are highly significant, neither judges nor journalists have primary responsibility for setting or implementing public policy. They are, to a degree, bystanders. This can produce unrealistic expectations about those bold enough to be primary players. From the sidelines it is easy not only to distrust the judgments of those who hold the levers of power, but at the same time to think that these powerful people should be able to head off damage or minimize risk. And, in any event, if those in the legislative and executive branches do not prevent another terrorist calamity, the finger of responsibility will be pointed at them. The judges and journalists, who had earlier claimed for themselves the authority to assess danger to the nation, will by then be safely offstage.

In these perilous times, it is a serious business to balance the value of exposing secret information against the risks. Congress and the executive branch should not cede this ground to newspaper reporters and federal judges.

Robert F. Nagel is the Ira C. Rothgerber Jr. professor of constitutional law at the University of Colorado, Boulder.