Doing the right thing and sending each other to jail.

It would appear that I must conclude that either Judge Hogan or Judith Miller has done something wrong, since the first sent the second to jail. However, I do not think this conclusion really follows. I think it is entirely possible for it to be the right thing to do to send someone to jail for doing the right thing.

I don't really have much to say about the specific case. I have never believed that there should be shield laws for journalists allowing them to protect their sources. I think the current legal system is about right. The principle that it is generally good for journalists to protect sources is currently implemented by standards for prosecutors which tell them not to try to force journalists to reveal sources for other htna compelling reasons and which allow judges to balance the publics interest in the specific information and in investigative journalism.

I admit that my opposition to shield laws is based on irritation with journalists' claims that they are special and deserve more rights than ordinary citizens. However, I claim that this irritation is partly based on a real issue. If journalists are given special rights, it will be necessary to decide who is a journalist. Any procedure for licensing legitimate journalists seems to me to create greater risks for freedom of the press than does an occasional contempt citation.

I admire Miller's willingness to go to jail for a principle. I regret the fact that she is currently in jail.

However, my point, if any, is that it is possible that both Hogan and Miller are doing the right thing. It seems obvious that it can not be just to punish someone for doing what they should do. However, I am a consequentialist, so I think punishment is justified by benefits which follow from the punishment not the imorality of the act being punished.

Consider the case of using torture to find a ticking atomic bomb in New York. One can imagine cases in which torture is morally admissible, indeed in which it is morally obligatory. However, I think that, in such a case, the torturer should be punished all the same. Punished for doing the right thing, because punishment deters similar actions which are almost all wrong and because a failure to punish is a gentle push at the top of a slippery slope.


In this case, the benefits include finding out who the source is (look it's hard to focus on abstract ideas like right, wrong, freedom of the press and equality before the law while daydreaming about Karl Rove doing the perp walk). The more important benefit is to enforce equality before the law. Journalists are not a priviledged caste and it is more importnat to remind ourselves of this even than it is to remind them.

On the other hand the fact that a journalist (even a journalist whose respect for journalistic standards is dubious) is willing to go to jail to protect a source will make people more willing to blow whistles.

I think that both Hogan and Miller are doing the right thing. The fact that he is sending her to jail makes this view is ironic but not, I think, self contradictory.