The first principle of journalism - the one that rolls freedom, trust and duty together in a bumper bundle - is that journalists are not a breed apart. They are ordinary citizens with no special rights or privileges, there to inform other ordinary citizens, to turn over stones, to question and cleanse. They speak to their readers and on behalf of their readers.
But then, bemusingly, other principles come into play. One, much fretted over after Iraq and the debacle of the missing WMD, is the use of anonymous sources. What's so "ordinary" about spinning cobwebs of tales from "high officials" and the rest of that wretched repertory company? Didn't the New York Times get the facts and the threat of Saddam's arsenal lethally wrong because it relied on dodgy testimony from Ahmad Chalabi and his Iraqi National Congress?
That lesson, in large part, seems to be learned. The Times, amongst others, has cut back heavily on the use of anonymous sources. "High officials" have never had such a thin time. Judith Miller of the NYT, the main link to Chalabi, has surely learned a bitter lesson.
But wait a second, where is Ms Miller? In prison, as it happens, for defending the anonymity of a White House source for a story she never actually wrote about the outing of a CIA agent who happened to be married to a former US ambassador who got on the wrong side of the Oval Office over WMD (this time in Niger, after duff testimony from MI6 rather than Chalabi).
And wait just one second more. How does this source-defending principle fit with the anonymity principle, not to mention the first principle of no special treatment under the rule of law? Why go to the stake to defend a spin doctor planting bile? We should begin, writes David Ignatius in the Washington Post, "by agreeing that the reporter-source privilege is not absolute" - any more than attorney-client privilege or doctor-patient privilege. The American Bar Association's own code of ethics recognises, for example, that the confidentiality of conversations between an attorney and client is limited by what is known as the "crime fraud exception". The privilege can be breached "if the attorney learns his client is planning to commit a crime or if the attorney is himself participating in a crime or fraud".
See how marshy the firm ground of principle has become? Thirty-one out of the 50 American states have "shield laws" which give journalists' sources some measure of protection, while federal law raises no shield: but there is nothing absolute here. The special prosecutor in the case pursued two reporters, Matthew Cooper of Time as well as Miller. Time fought the case to the last minute of the last hearing and then capitulated. There are no opt-outs from the rule of law if you lose rather than win, said Norman Pearlstine, its editor in chief. Ordinary Time readers wanted to see judges and juries obeyed, not flouted. No special privileges. It was a principled decision: but trouble flows as principles collide.
Look closer to home. The last great ruckus here was when several editors declined to hand over heavily doctored documents supposedly detailing a prospective takeover bid for South African Breweries by the big Belgian brewer, Interbrew. The forger's idea was to make a killing. Hand over the papers to help catch a crook. But no ... without a First Amendment but with considerable resolution, the editors declined to cooperate. The privacy of the source was sacrosanct. Perhaps the American Bar Association, scenting a crime-fraud exception, would not have agreed, but the line was held. And British legal experts - like Martin Soames of DLA Piper, writing for MediaGuardian - cite other trenches of defence.
"Journalists are given statutory protection against identifying sources under section 10 of the Contempt of Court Act of 1981. The Act says that a court cannot require someone to disclose a source of information, nor will they be held guilty of contempt of court for refusing to disclose it, unless "the court is satisfied disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime". That is a "useful shield", says Soames: 'better than America's "rather fragile consensus which is no substitute for legislation". But how easily he forgets ...
I have a D.Phil in source protection theory, and the notoriety that goes with it. Sarah Tisdall, a young Foreign Office clerk, was sent to prison for leaking details of 1983 cruise missile deployment plans on my Guardian editorial watch, and journalism legend blames me for that (which is not surprising since I still blame myself). Legend, at this distance, leaves a few things out, though.
It forgets that nobody at the Guardian knew, until her arrest, who had put a couple of bits of secret paperwork in a brown envelope addressed to our political editor and left it at head office so that it turned up, as though by magic, in the news editor's in-tray. It forgets the modest intensity of the story itself, only resumed ten days later (after Reagan's Grenada invasion) with a full text tucked on page two. It forgets, though I never will, my call to our excellent lawyer when it seemed, out of the blue, that Special Branch might stage a raid and that there were too many copies in the hands of reporters on their day off who weren't answering the phone. What to do? I asked, and our lawyer gave the answer that section 10 of the Contempt Act provides.
The document in question concerned parliamentary tactics; it told how the missiles would go in to Greenham Common and the arguments that Michael Heseltine, then defence minister, would use in the house. It was about Westminster, not national security; it was politics, not disorder or crime.
We had a new shield against onslaughts like this, a law designed to give us succour. The lawyer suggested a legal defence which, to be activated, needed me, on behalf of the company, to pledge not to destroy the document. Sign here please ... I did.
And we almost won. At the end of the high court trial, Richard Scott ruled for us. Victory! Then, two hours later, the court of appeal struck us down. They found that although the document was harmless and covered by section 10, the sort of unreliable public servant who had leaked it might leak something more dangerous next time, and so must be exposed forthwith. Now you see salvation, now you don't. Still without a blind idea if capitulating would reveal anyone, I had my longest day. Did I tear the paperwork up and take what came? Gallantry or quixotic gesture? The devil was that I had signed on behalf of a company facing brutally escalating fines for non-compliance. I'd given the Guardian's word, not just my own. Could companies which believed in the rule of law, owning papers that championed it, duck when the going got tough?
Well, you may remember what happened. The blanked-out hieroglyphics top right, which had seemed like a clue, were meaningless. But Sarah had used a FO copying machine that helped track her down. She might have pleaded not guilty, like Clive Ponting, and been acquitted, but she didn't. I was left looking, and feeling, worse than Pearlstine. And so the legend continues.
Living with it, though, helps set all those principles in their place. No difference in law from ordinary people? Absolutely: throw your shields, section 10s and first amendments away. If a source needs protection, if you have given your word, then don't call for a solicitor - because due process will drag you down. Anonymous sources? Use them only in extremis. Then everyone will know they are a fight waiting to happen if challenged.
Very little of this features in the American debate. Everybody wants more protection, not less. Everyone wants better arguments for their friendly barrister. "Good" cases, like Woodward and Bernstein's, come once in a blue moon; bad cases, full of miscalculations and confusions, are the norm.
Most of the time, perhaps, the certainty of a messy fight deters pursuers. Sending journalists to prison brings few boosts in the Gallup polls. But principle, schminciple ... This is pure, desolate pragmatism. To do our job, we need to make simple choices about information and how it comes in - and we need to honour clear bargains. Not the First Amendment, but brute common sense. Pack away your wigs - and take it from one who, miserably, knows.
· A longer version appears in the British Journalism Review, Vol 16 No 3, from SAGE Publications, 1 Oliver's Yard, 55 City Road, London EC1Y 1SP. Subscription hotline: 020-7324 8703. subscription@sagepub.co.uk