Posted on 10/18/2004 5:34:56 AM PDT by OESY
In an Oct. 10 editorial titled "The Promise of the First Amendment," the publisher and chief executive of the New York Times opined that for a federal judge to imprison their reporter Judith Miller for contempt of court violates the press freedoms guaranteed in the First Amendment. This argument misstates existing law and misunderstands the issues at stake....
The Times argues that "the press cannot perform its intended role if its sources of information -- particularly information about the government -- are cut off." Hence, Ms. Miller has a First Amendment right to refuse to respond to the subpoena. This is a puzzling argument. In 1972, the Supreme Court unequivocally rejected this argument. It made clear that as long as there is a legitimate law-enforcement reason for the inquiry, and it is made in good faith and not for the purpose of harassment, the reporter has no First Amendment right to refuse to answer. Surely, the Times does not expect a lower federal court judge to disregard a clear Supreme Court precedent merely because the precedent doesn't support the interests of the newspaper.
The reasoning of the Supreme Court in its 1972 decision in Branzburg v. Hayes was unexceptional....
Having said all this, I have to say that I agree with the Times that the Supreme Court erred in Branzburg....
More interesting is the deep irony of this situation. If the prosecutors had not aggressively pursued this investigation, the Times would unquestionably and correctly accuse them of covering-up a Bush administration scandal....
Finally, it is essential to note that this incident does not involve the intrusion into a confidential source relationship.... If any member of the Bush administration told.... Miller ...Plame was a covert CIA operative, she should drop the claim that this unlawful act is protected by... First Amendment....
(Excerpt) Read more at online.wsj.com ...
PLUME: I'm a deep cover spy for the CIA and I carry around state secrets in my pretty head.
WILSON: I wondered why you have "James Bond was here" tatooed on your ass.
"the press cannot perform its intended role if its sources of information -- particularly information about the government -- are cut off."
When does New York Times, start this radical new plan of performing its intended role, so far all they do is put forth their liberal agenda.
"Correctly"? Absolutely not. It was someone working under the Bush administration technically (after all, Plame works under the Bush administration, God help us), but not, contrary to the appalling accusation that the Wilsons made and this irresponsible professor presumes true, someone associated with President Bush seeking to retaliate against the Wilsons. Clearly this case was the Wilsons against Bush and the Novak business started by way of explanation, not intimidation.
Does it occur to him that Plame was not a covert agent? Evidently not.
That is exactly true. And seeing that it is a Republican who would suffer for it, The New York Times would IMHO do just that.The fact that The New York Times does not support that charge indicates that the charge is false.
That is exactly true. And seeing that it is a Republican who would suffer for it, The New York Times would IMHO do just that.Compare this case to Monicagate. We were subjected to a constant stream of leaks of information damaging to the Clinton Administration and a corresponding stream of false accusations that it was Ken Starr who was, illegally, leaking priviledged information obtained from Grand Jury testimony. In historical retrospect we know that the leaks came from the White House and not the Special Prosecutor. But although the journalists who printed the leaked information knew it was not illegally leaked by the Special Prosecutor, they printed the accusations against the Special Prosecutor without debunking them. Thereby falsely insinuating that they were true.
In the Plame affair, witholding the source information insinuates that the charge against the Bush Administration might be true. But the fact that The New York Times does not vindicate the charge against the Bush Administration is sufficient evidence that the charge is false.
Excellent point. The only reason any issue arose at all is because Wilson was attacking Bush. When we know that Wilson's wife is the one who got Wilson the gig of "investigating" the Niger-Saddam connection, it makes the issue too clear for Wilson's comfort - and he changed the subject to smearing the outing of Mrs. Wilson's role in this sorry affair.
I Sympathize With the Times; Nevertheless . . .
In response to Russ Lewis's Oct. 20 Letter to the Editor about my commentary "Miller, Novak, Plame, Wilson. . ." (Rule of Law, op-ed page, Oct. 18), permit me to repeat what I said there: I believe the Supreme Court erred in its 1972 decision in Branzburg. The court should have recognized a broader First Amendment privilege for reporters than it did. But it did not. And there's the rub. Mr. Lewis, president and CEO of the New York Times Co., argues as if the court had decided the exact opposite of what it did decide.
As I observed on Oct. 18, because of Justice Powell's rather obscure concurring opinion, Branzburg can fairly be read to recognize that a reporter may have a narrow First Amendment privilege, but only if "the grand jury investigation is not being conducted in good faith," or "if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation," or if the inquiry serves no "legitimate need of law enforcement." So far as I am aware, no such claim is plausible in the Valerie Plame situation.
Mr. Lewis also notes that 31 states have enacted shield laws to protect reporters in these circumstances. This is so, and I support such laws. But Mr. Lewis must keep in mind that these laws were enacted after Branzburg precisely because the Supreme Court had refused to recognize an adequate privilege under the First Amendment. Mr. Lewis also argues that this case makes clear the need for a federal shield law. Again, I agree. But, of course, there is no such law currently in place, so it cannot be invoked by Mr. Lewis or Judy Miller.
The fundamental problem is this: Mr. Lewis wants the law to be different than it is. So do I. But even newspapers must comply with the law. Ms. Miller has said that when she promises confidentiality to a source, she will honor that promise and go to jail, if necessary. That sounds admirable. But at the time she had her conversation with the White House officials involved in this incident (assuming, of course, that she had such a conversation) she had no legal authority to make such a promise. She could certainly have promised to protect confidentiality "to the extent allowed by law." But in going beyond that, she offered an unwarranted assurance. She has no right to honor a promise she had no right to give.
Of course, the Times does have a right to argue that Branzburg should be overruled. In the circumstances, the way to assert that claim is for Ms. Miller to stand on principle, be held in contempt, and appeal to the Supreme Court, if necessary. I am in complete sympathy with that approach. But if Ms. Miller loses in this effort, she then has no legal right to refuse to answer. She has said she will do otherwise, and in that she is wrong. The press has rightly gained enormous protection over the years from the Supreme Court's generally expansive interpretation of the First Amendment. But if it is to preserve that protection, which is essential to all Americans, it must accept the law when it loses as well as when it wins.
Finally, Mr. Lewis invokes the Pentagon Papers case. The analogy is inapt for two reasons. First, the New York Times and Washington Post made perfectly clear in that case that they would in all respects comply with the orders of the courts, and they did. Second, the Pentagon Papers disclosed information of vital interest to the public. So far as I am aware, no one argues that the public revelation of Valerie Plame's status as a secret CIA operative served any legitimate public purpose. It served only to thwart the national security interests of the CIA and to endanger Ms. Plame in retaliation for her husband's "disloyalty" to the Bush administration. Government officials who engage in such conduct for purely personal and partisan reasons have no constitutional right to keep their identities secret.
Geoffrey R. Stone
Professor of Law
University of Chicago
Chicago
If a Federal crime was committed and the only witness (or accomplice?) is a reporter, they are not protected by first amendment. They are obstructing justice and denying the "victim" due process and their day in court.
That being said.
The blabber was a Lefty.
No doubt about that at all.
"The reasoning of the Supreme Court in its 1972 decision in Branzburg v. Hayes was unexceptional.... "
This is the same Supreme Court that legalized abortions in Roe v. Wade. These guys were the smartest in history, therefore, nothing they could do would be 'unexceptional'. sic
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