One of the most brilliant innovations of the United States Constitution was checks and balances.  By creating a system that prevented any one of our tripartite branches of government from towering over the others, our founding fathers recognized that the concentration of power was too dangerous to leave unchecked.  While the perpetual balancing act may be imperfect, it remains a stroke of genius.

But there is one group that was left out of this balancing act, the media.  While a free press is a right established by the 1st Amendment, it’s relegated to a subordinate position to the government.  How so?  The fact that the government “gave” the media the fundamental right of freedom proves that it is subordinate.  Co-equals do not need each other’s permission to exercise their natural authority; they have the power to take it. 

While it can be easily argued that the media has frequently squandered its inherent power on silly, sensationalist stories that do little to add to the accumulated knowledge and understanding of the public, and hence is unworthy of much of our concern, it still has a purpose in the scheme of a democratic society that cannot be denied and is occasionally fulfilled brilliantly.

An example was shown in this  Wall Street Journal editorial, supporting District Judge Reggie B. Walton for holding former USA Today reporter Toni Locy in contempt of court for refusing to identify her FBI sources about Dr. Steven Hatfill.

As many as 12 different officials in the FBI and the Department of Justice leaked inside information to Ms. Locy about their investigation into the anthrax attacks of 2001. They told her, and she reported, that some investigators thought former biodefense researcher Steven Hatfill was behind the attacks. The FBI, they said, could not “risk the embarrassment of losing track of Hatfill, even for a few hours, and then being confronted with more anthrax attacks.” These leaks, and others like them, ruined Dr. Hatfill, against whom, as Judge Walton noted, “there is not a scintilla of evidence.”

Dr. Hatfill is now in court, seeking justice for his life ruined needlessly at the hands of our government officials.  His cause is just, and even the WSJ wants him to win against the government.

Now Dr. Hatfill wants justice, which means getting the names of the leakers. Ms. Locy is the only one who knows the names. Dr. Hatfill asked for them; she asked Judge Walton to let her keep the names secret based on her private promises of anonymity. Judge Walton said no and ordered disclosure. Ms. Locy is in trouble not because she reported what she heard, but because she disobeyed a court order to tell us where she heard it. It’s hard to see how we could run a court system any other way.

So Toni Locy, like Judith Miller before her, will pay the price of refusing to give up her sources.

And so, an irony must be noted:  The Journal’s head-scratching at how “we could run a court system any other way” neglects to consider the State Secrets Doctrine, which allows the government to protect itself at the expense of running a court system.  Is it reasonable for the courts to shut their doors when the government wants to keep a secret, but not when the reporter does the same?  Absolutely, when the balance of power favors the government, even though both exist (theoretically) to create a balance of power for the benefit of the people.

But more directly, a court can order a reporter to answer, and jail the reporter upon refusal.  Without the belief that insiders can disclose secrets to reporters and protect their identities, how many lies will go unnoticed or undisclosed?  This is a problem too, your honor. 

It would make me very, very happy to see Dr. Hatfill nail those government scoundrels to the wall for having destroyed his life to use him as a weapon in the war of fear.  But with the belief that they could speak under cover of anonymity, Dr. Hatfill would never have known of the scheme to use him to deceive the public.  It’s a circular problem.  It’s a matter of balance.

Why should the press be subjugated to the courts when it comes to the performance of its duty?  A free press is necessary as a check on the government, its excesses and abuses, if we, the people, are ever to learn the dirty little secrets that people with too much power hold dear. 

The WSJ editorial poses four questions that reveal far more about its disingenuous support for the government than its critical thinking.  It finally posits this question:

One wrote that “if a shield law is put in place, irresponsible journalists can print anything and get away with destroying lives. There has to be some sort of checks and balances here.” If these comments reflect public opinion better than the media conglomerates’ lockstep editorializing does, how can a senator justify a shield law?

In its bizarre twist of logic, it has reversed the argument to suggest that “media conglomerates” will use their “irresponsible journalists” to subvert justice for the people against the will of the American people.  It almost makes one feel sorry for our weak government, unable to fight against the overwhelming power of the pen.

But there is one line that I agree with, that there has to be some sort of checks and balances here.  The press cannot jail a federal judge.  The press cannot subpoena federal officials to give testimony, or punish a perjurer.  The press has no army or police force to silence anyone who would disclose too much.  And the press has no way to protect itself from a court system that makes the rules that dictate and control the subservient press. 

When this changes, then we can think about how to crush a free press.  Until then, our fourth branch exists only to the extent the other three allow it, without the necessary checks and balances.

Update:  My good buddy Norm has written on the subject, and comes out exactly opposite of me. Go figure.  Of course, Norm knows his newspaper reporters.