Salon recently featured an article exhorting "anyone who truly supports freedom of speech" to "rally behind jailed, controversial New York Times reporter Judy Miller" and chiding those who refuse to out of lingering resentment against Ms. Miller over her faulty pre-war WMD reporting. You can read it here, but you'll have to watch an ad, and I warn you: the ad prominently features Tucker Carlson's big obnoxious face. So here are some excerpts, emphasis added:
...it was reasonable to expect at least some anti-Miller letters in the wake of Manjoo's and freelance reporter Michael Scherer's Salon stories about the Miller case. Like virtually everyone else in every branch of the media, Manjoo and Scherer reported Miller's impending and then actual imprisonment as a dark day for press freedom.I'm not sure I buy all this. It's not initially clear what this has to do with the First Amendment. The argument, I take it, is that the First Amendments prohibition on laws "abridging" the freedom of the press precludes the state from compelling journalists to testify before grand juries if doing so would require them to reveal previously secret sources, the idea being that if this practice were widespread, these secret sources would dry up - to avoid landing themselves in trouble - and the press would not be able to operate properly without them.
...But it's safe to say that everyone here was surprised by the consistently enraged tone of the letters -- furious might be a better word ... Of the dozens of letters we have received on this issue over the last few weeks, no more than a half-dozen have supported the general tenor of Manjoo and Scherer's reporting, or indeed have seen the Miller case as in any way a matter of fundamental freedoms.
"What a steaming load of treacle and crap," the Washington reader wrote about the latter story, describing it as "laying on the sentimental details with a trowel" in an attempt to evoke reader sympathy for Miller as she was led off to jail. "I've had my objections to Salon articles before but this is unquestionably the worst piece you've ever run on any subject."
... many members of the public -- especially liberals who ought to be staunch defenders of the Bill of Rights -- seem unable or unwilling to grasp the idea that a matter of fundamental principle might be at stake, even in the murky and seemingly bottomless waters of the Miller-Plame-Rove affair. Compelling a reporter to reveal his or her sources to the police turns that reporter into a police agent, and that's not acceptable, even in unsavory circumstances like these.
...Even if you believe that Judith Miller is nothing more than "a shill for the Bush administration" (a Florida reader) or "a co-conspirator in a government coverup" (a Missouri reader), she's still entitled to the same constitutional protections as Greg Palast and Amy Goodman ... The First Amendment covers all members of the press, without regard to truthfulness, integrity or their perceived similarity to sub-reptilian life forms.
...After our second boatload of anti-Miller letters, Mark Hughes Cobb of Alabama responded in disbelief: "Absolutely amazing. Salon letter-writers who disdain freedom of the press. Perhaps a little reading of the Bill of Rights (certainly not a re-reading in any of these cases) would be helpful. The free press belongs to everyone; not just the New York Times, not Time, and not even to Salon and the blogosphere. If an out-of-control special prosecutor decides to come after your comments next, I'll be sure and write in with scathing remarks on your unfitness to wield freedom."
A student journalist from San Francisco, Daniel Jimenez, was more sad than angry, but his questions capture why even those in the media who believe Judith Miller did immeasurable damage to our profession don't think she belongs in jail. "Do we really want to add the United States to the list of nations whose governments use their power to punish political opponents, including perceived enemies in the media?" he asked.
This is highly debatable. First of all, as it stands now, the state can compel journalists to reveal sources (or jail them if they don't), and there still seems to be an abundance of people willing to provide information.
Second, the First Amendment claim is shaky at best. The relevant Supreme Court decision is Branzburg v. Hayes in 1972, in which the Court determined that one's status as a journalist doesn't grant one a special privilege to decline to testify in such situations, a right not shared by members of the general public. The point of compelling testimony is to prosecute wrongdoers, and in certain situations individuals are required to assist in this process. Why should journalists be any different? From the Branzburg decision (written by Chief Justice White):
Accepting the fact, however, that an undetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future.Finally, when the letter writer quoted above says that the failure to recognize Judy Miller's First Amendment right to conceal her sources will result in governments that "use their power to punish political opponents," he's ignoring the fact that this abuse of power is expressly prohibited in the Branzburg ruling. The fact is that reporters' interest in protecting their sources is protected by the First Amendment, but only up to a point, i.e. not absolutely, which is hardly surprising. From Branzburg:
as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.And Justice Powell, concurring:
I add this brief statement to emphasize what seems to me to be the limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. Certainly, we do not hold, as suggested in MR. JUSTICE STEWART'S dissenting opinion, that state and federal authorities are free to "annex" the news media as "an investigative arm of government." The solicitude repeatedly shown by this Court for First Amendment freedoms should be sufficient assurance against any such effort, even if one seriously believed that the media - properly free and untrammeled in the fullest sense of these terms - were not able to protect themselves.
As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.
Some will insist that the failure to grant people like Judith Miller First Amendment protection will lead to the downfall of the press, but one has to wonder how much further they really have to fall. I, for one, would gladly trade the use of anonymous sources in toto for a press more willing to critically examine and question what they are told, for journalists more willing to speak truth to power.