Earlier, I disagreed with Salon and others who say that Judith Miller's first amendment rights have been violated. Today, Battlepanda links to John at Dymaxion World, who makes this point nicely:
...while journalists have been yelling about how we non-journalists "don't get it" that a principle is at stake here, journalists don't seem to get that a very serious crime was comitted in the Plame case. Moreover, it was comitted using the legal protections which journalists are afforded.And Angelica adds a really good point:
Some have compared the Plame/Miller affair to the Skokie case, where Illinois Nazis had their right to assemble defended by the ACLU and the Supreme Court ...
I think the Skokie analogy is wrong. Rather, a better example would be the Amadou Diallo shooting in New York. Police, like journalists, are afforded certain legal protections to do their jobs, because society recognizes that their jobs serve a greater purpose - cops are allowed to use lethal force in certain situations, reporters are allowed to keep sources anonymous. But what do we do when those legal protections have obviously been misused?
If you think the proper response to the Diallo shooting (or any example of police misconduct) is to let the police responsible go without any investigation, or to allow the police to interfere and refuse to cooperate with an investigation, then I can see why you might think Miller deserves to go free. She almost certainly has information pertaining to this crime, and is refusing to cooperate. Like journalists are doing today, police have regularly warned that any prosecution of their crimes will lead to their jobs being poorly done - i.e. less law enforcement. Those threats have been hollow. Honest journalism will continue.
It's also worth noting that, like the Diallo case, people have almost certainly died because of Robert Novak's actions. This was a gross misuse of a reporter's privilege, as bad as any police shooting. I can honestly see why some journalists are worried - this affair will change the way reporting is done in the US, and I hope for the better. If it leads to journalists being less giddy about getting anonymous leaks used to smear political opponents, I won't shed a single tear.
In addition, I would just like to add that a blind insistence that journalist/source priviledge be completely above the law is a sure way to lose that priviledge in the long run. It would not take many more Plamegates for the public to turn hostile towards the entire practise of anonymous sources, and rightly so, if the culprit goes unpunished.