As of this hour, Judy Miller is in jail for contempt of court. Matthew Cooper would be there as well, but at the last minute today, his source waived confidentiality to Cooper himself, allowing him to "ethically" testify before the grand jury. The judicial branch, all the way up to the US Supreme Court, reviewed the case and ruled that Cooper deserved no exemption from subpoena. The source himself (or herself?) apparently had publicly waived confidentiality, and today did so in person to Cooper, who was now not only under court order to testify, but had no ethical obligation not to.

And yet the Columbia Journalism Review, fans of muckraking reporters who expose lawbreaking, believe that Cooper should have continued to violate the law so they'd feel better about the whole thing.

According to the Washington Post, special prosecutor Patrick J. Fitzgerald already knew the identity of both Miller and Cooper's sources; he discovered the identity of Cooper's source when Time turned over Cooper's notes and emails. Fitzgerald himself said it would be "pointless" for Cooper to go to jail, and the source apparently agreed, based on the conversation Cooper cited in court today. It's difficult not to be sympathetic to Cooper's desire to avoid what would have been imprisonment to protect a source who was seemingly already out in the open.

But while we sympathize, we can't defend his decision. Cooper's imprisonment might not have helped his source, but it would have sent a message on behalf of journalists everywhere -- as Judith Miller has done -- that they will not buckle under government pressure. The facts aren't all in yet, but it appears that Cooper's source gave him permission to testify only when it became clear that Cooper was almost certain to go directly from the courtroom to jail; otherwise, that permission would have come long ago. In effect, the government used Cooper's impending incarceration as a lever to bludgeon his source -- and both the source and Cooper gave way.

It's just like I said yesterday - these big-media journalists believe that they, and only they, should always and without review be exempt from answering questions under subpoena. They don't need proof of a promise of confidentiality - all they have to do is say they made such a promise, and as far as they're concerned, everyone else in the world should genuflect and back away. Only they, The Reporters, are qualified to know what courts must and must not hear. They are above the law.

One reason that I used to like Brill's Content, and that the media absolutely hated it, was that the magazine continually pointed out that the press was happily willing to hold everyone else to standards that they would never follow themselves. CJR itself liked Brill's Content, though if I remember correctly, the author of that piece later went on to become the magazine's final ombudsman. (Brill was at least bright enough to sign the ombudsman to an irrevocable, non-renewable, two-year contract, guaranteeing him three pages in the magazine each month to use however he wished. No matter how good an ombudsman was, after two years, he was gone forever.)

This is one of those times. No reporter would ever stand for the concept that a politician doesn't have to reveal something under oath simply because he told someone that he wouldn't - but they're demanding that privilege for themselves. More than that, they're demanding the right to break the law until they get it. They're demanding that Matt Cooper break the law, even without any ethical reason to do so, just to make their point. They don't want the qualified privilege to protect whistle-blowers - they want to be the sole arbiters of when they have to tell anyone anything. If they want to reveal their sources, they could. If they don't want to, they don't have to.

And CJR is backing this up! This is where the media loses the public for the better part of a decade if they're not careful, and they're not careful. They demand an unqualified right to be the keepers of secret information.

This ties into the media's antipathy towards bloggers, too. The big press is happy to support Jason O'Grady in his fight to keep anyone from revealing who gave him an Apple-confidential document that he published nearly verbatim, because that ties into their desire for their universal unqualified shield privilege. But whether in this case or not (since O'Grady is most definitely not a blogger), at some point, the courts are going to rule that journalism happens online as well as in print.

When that happens, all you'll need is 5 minutes in a library and a free Blogspot account to become a true "journalist," and then you'll never have to answer any subpoenas you don't like. That's why, outside of the specific subpoena cases, the media opposes treating bloggers as journalists - what's the good of being above the law if everyone can do it?

Journalists deserve some help from society as long as they serve society. Demanding exemption from the law for protecting criminals in the government from prosecution does not count. I've always believed the best journalists must have almost no ego - they have to be prepared to retract a story as soon as it's discovered to be wrong, go find out what happened, and tell everyone.

For CJR, apparently, society exists to serve the press. Demanding that a reporter go to jail to prove their point? How would CJR fare today if they were subject to the same kind of rigorous examination that resulted in identifying The Worst Newspaper In America?

Not well, I think.