With good reason, the journalistic world has rallied behind Judith
Miller, a reporter at the New York Times who was jailed July 6 after
having been found in contempt of court. She has been hailed as a hero by
many people and as an example of what all reporters should do to protect
their confidential sources when the government tampers with the
information-gathering process.
Miller does represent those things. She is also the poster child for a
revived cause: a proposed federal "shield law" intended to protect
journalists against imprisonment, the worst-case legal scenario when
they refuse to betray their confidential sources. Such a law is being
proposed by Representatives Rick Boucher, Democrat of Virginia, and Mike
Pence, Republican of Indiana, along with Senators Christopher J. Dodd,
Democrat of Connecticut, and Richard G. Lugar, another Indiana
Republican.
The problem is, reporters aren't the only ones who need protection from
governmental meddling in their work. Unfortunately, however, only
journalists are covered by the proposed legislation—a fact that
disturbs me deeply because I hold the dubious distinction of being the
scholar jailed in the United States longer than any other for protecting
confidential sources.
As a Ph.D. student in 1992, I was conducting research on the radical
environmental movement when the federal government came knocking,
believing I had interviewed people involved in a break-in at a federally
supported laboratory at Washington State University, where I was
studying. Like Miller, I refused to answer some of a prosecutor's
questions on the grounds that compelling me to do so violated the First
Amendment's free-press provisions. And, like her, I was locked away by a
judge for an unspecified amount of time—although it is unlikely that
Miller will serve longer than four months.
My release, after more than five months in jail, came only when the
judge in my case realized I would never betray the promises of
confidentiality that I had made to research participants.
My release, after more than five months in jail, came only when the
judge in my case realized I would never betray the promises of
confidentiality that I had made to research participants. If Miller
leaves jail with her honor intact, she will tread that same woeful
path.
Journalists often frown on confidential sources. However, social science
requires information gathered from large numbers of people, not from
single, knowledgeable individuals. To protect our sources, we scholars
are ethically bound—and, under federal "human-subjects laws," usually
legally bound—to conceal their identities. Are not those promises of
confidentiality at least as valuable as those made by journalists?
Much of what social scientists do can rightfully be understood as
investigative journalism on steroids. For example, for a single
scholarly paper, an ethnographer like me may interview 50 to 100 people
for one to three hours each. We winnow through interview transcripts,
carefully following accepted methods for identifying key concepts and
theoretical markers. Once written, a paper goes to multiple peer
reviewers who evaluate an article based on its scientific merit.
Given our careful data analysis, the frequent use of our findings to
shape policy, and our contributions to society's storehouse of
knowledge, scholars deserve the same legal protections that members of
Congress are now contemplating for our journalist colleagues.
Precisely those kinds of protections were the subject of the late Sen.
Daniel Patrick Moynihan's Thomas Jefferson Researcher's Privilege Act of
1999. That legislation would have created a shield law to cover not only
journalists, but all of society's information gatherers. Under Senator
Moynihan's legislation, which died in committee, researchers and writers
working on "academic, commercial, scientific, or technical" issues would
be safeguarded from prosecutors subpoenaing their notes, photographs,
film, e-mail messages, and the like.
It's also a bad thing for democracy when only some of
us enjoy fundamental rights. Do we limit which professions enjoy free
speech?
What are the possible objections to such inclusive legislation? One—that
scholars are undeserving of First Amendment protection because they
aren't members of the mainstream press—doesn't mesh with the Supreme
Court's broad interpretation of the "press" concept. No less an
authority than Chief Justice Warren E. Burger once wrote in a Supreme
Court opinion: "In short, the First Amendment does not 'belong' to any
definable category of persons or entities: It belongs to all who
exercise its freedoms." Narrowing that definition risks curbing the
development and dissemination of knowledge central to the mission of the
social sciences. It's also a bad thing for democracy when only some of
us enjoy fundamental rights. Do we limit which professions enjoy free
speech?
Another concern is that because scholars do not work for publishers, how
can we claim with any certainty that our research will be published?
Indeed, we almost never have a guarantee of publication, precisely
because of the canons of science—in particular, the peer-review
process. Typically, scholarly-journal editors reject more than half of
all submissions. However, we are working for and toward publication,
making a good-faith—and career-essential—effort to see our studies
through to the black-on-white of the printed word. It's worth mentioning
that Miller went to jail having never published a word on the case the
prosecutor is investigating.
The lack of a federal shield law prompts social
scientists to limit their assurances of confidentiality to research
participants for fear of going to jail. As a result, we practice
self-censorship, deliberately restricting the topics we study.
Quite simply, without scholarship about society that is based in
rigorous methods and sound analysis, we will not know with scientific
certainty about the good, bad, and ugly of our culture. True, even our
less than "free" press enables scholars to publish extensively about
many subjects. Yet the lack of a federal shield law prompts social
scientists to limit their assurances of confidentiality to research
participants for fear of going to jail. As a result, we practice
self-censorship, deliberately restricting the topics we study. Absent a
shield law, it takes a brave scholar to conduct in-depth interviews
with, for example, polygamous fundamentalist Mormons or violent
inner-city drug dealers.
Just ask Richard A. Leo, an associate professor of criminology, law, and
society at the University of California at Irvine, and Russel Ogden, an
instructor in criminology at Kwantlen University College, in British
Columbia—two scholars whose work has been drawn into the legal
system's vortex in recent years. When he was a graduate student at
Berkeley, Leo faced a contempt citation stemming from his research on
police officers. Ogden, while a graduate student at Simon Fraser
University, was threatened with contempt by a coroner over his data on
AIDS victims' suicides.
We social scientists who do research on such subjects, and just about
any other controversial topic, expose ourselves to heavy-handed police
and prosecutorial treatment: interrogations, grand-jury appearances, and
legal intimidation. And we do so all in the name of obtaining deeper
understandings of real and troubling aspects of our society. Without
such knowledge, how can we as a country expect to resolve social
ills?
Social science exists to explore, interpret, and discover, and its
greatest service occurs when it informs public policy by doing those
other things. We need good answers about what ails us—and what we are
doing right as a society. Unfettered scholarship is the best means to
those answers, so let's shield all members of the press from unwarranted
governmental intrusion.
Rik Scarce is an assistant professor of sociology at Skidmore College.
He is the author of Contempt of Court: A Scholar's Battle for Free
Speech From Behind Bars (AltaMira Press, 2005).
