Judy Miller and the press, Part 2

Indeed, many on the left ignore the fact that the effects of Supreme Court decisions are not easily restricted. As time goes on, they are almost inevitably applied far more broadly, and in far different and more problematic situations, than partisans of a given issue realize. It's one thing to want to punish a reporter whose misuse of anonymous sources helped start a war. If journalism as a social institution were more transparent and more accountable, maybe Miller would have been censured or fired or reassigned to covering flower shows in Westchester. But do we really want to punish her with force of law, and in so doing permanently weaken the press and strengthen the government?

1) First of all, readers are clearly correct that the First Amendment offers no absolute protection to journalists and their sources. No one, or almost no one, pretends it does. Secondly, readers are also correct that under current federal law -- specifically, a 1972 Supreme Court decision, supported by the court's June 27 refusal to hear Miller and Cooper's appeal of a lower court's decision against them -- reporters can be compelled to testify before a grand jury (as Cooper will) or face prison (as Miller has). Along with most of my colleagues, I believe this federal law is wrong. However low my opinion of Judith Miller as a journalist may be, I have to honor the fact that she has refused to obey this law. Matt Cooper would have refused too, but his bosses made the decision for him (and his source, evidently Rove, freed him from their confidentiality agreement).

Many readers seemed unaware that in 31 states, plus the District of Columbia, vigorous state laws shield journalists and their anonymous sources from almost all police and legal inquiry. Generally speaking, exceptions can be made in cases where a reporter has personal knowledge of an actual or potential crime, and -- an important addendum -- where there is no other reasonable way to prosecute or prevent that crime. Federal law on this question is a jumble; as Manjoo reported for Salon, different federal judges in different jurisdictions have interpreted the 1972 ruling, Branzburg vs. Hayes, in different ways.

So, yes, it is absolutely clear that in the judgment of the highest court in the land, Judith Miller broke the law in refusing to reveal her source for the Plame leak. But again, it's a peculiar sensation to see self-described liberals and leftists taking shelter behind the current Supreme Court, or behind the 1972 Branzburg case. In that 5-4 decision, the majority ruled that Paul Branzburg, a 28-year-old reporter for the Louisville Courier-Journal, had to testify before a grand jury. Specifically, Branzburg had written several stories about the use and sale of marijuana and hashish in Kentucky, after agreeing to protect the identities of people he met. "We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source," wrote Justice Byron White for the majority, and Branzburg was forced to narc out his hash dealers. Feeling better yet?

White was joined by then-Chief Justice Warren Burger and Justices Harry Blackmun and Lewis Powell (who wrote a curious concurring opinion seeking to limit the scope of the damage). Also voting with them was the lone thread connecting that Supreme Court to this one, a 47-year-old recent appointee named William Rehnquist. The four justices who voted for Branzburg's right to protect his sources were William Brennan, William O. Douglas, Thurgood Marshall and Potter Stewart. I don't know about you, but I'm pretty sure which side of that vote I want to be on.

Nobody who knows about "Wild Bill" Douglas, perhaps the greatest First Amendment defender in American judicial history, will be surprised to learn that he issued a thundering dissent in the Branzburg case, proclaiming a reporter's "absolute right" not to testify before a grand jury. It spoke loudly to the darkened political landscape of America in 1972, and does so at least as much today:

"It is my view that there is no 'compelling need' that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. His immunity in my view is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier ...

"Today's decision will impede the wide-open and robust dissemination of ideas and counterthought which a free press both fosters and protects and which is essential to the success of intelligent self-government. Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens ...

"Today's decision is more than a clog upon news gathering. It is a signal to publishers and editors that they should exercise caution in how they use whatever information they can obtain. Without immunity they may be summoned to account for their criticism. Entrenched officers have been quick to crash their powers down upon unfriendly commentators ... The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy."

This story has been corrected since it was originally published.

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