Judy Miller and the press, Part 2

Andrew O'Hehir responds to his critics.

By Andrew O'Hehir

Executive Editor

Published July 13, 2005 11:40PM (EDT)

The continued angry response from many readers to my opinion piece about the Judith Miller case exemplifies the central point I was struggling to make: There is now a yawning gulf of perception between the media's sense of itself and the public's ideas about the media. One reader put it this way in a personal e-mail: "We -- the public -- see you (journalists) as a bunch of self-serving hacks. This First Amendment BS has more to do with protecting your cozy relationship with the powers that be than with serving the public." As I tried to make clear in my article, the press itself is partly, even largely, to blame for this predicament. But that doesn't change the underlying principles that are at stake here.

Today's letter writers have largely moved away from the emotional argument that Judith Miller belongs in jail because of her WMD stories, which are not related to the Plame affair. In this round, readers have raised a number of important legal and moral issues I should have dealt with more clearly in the initial essay, and for that I am grateful. I would still suggest, however, that the judgment of many on the left is clouded on the one hand by ideology and on the other by overly legalistic thinking.

Reader arguments can largely be summarized as follows: 1) The First Amendment does not offer any blanket protection of journalists' confidential sources, either in its explicit language or in judicial interpretations. 2) Whoever told Miller about Valerie Plame was committing a crime, so that source is entitled to no protection; Miller can and should be compelled to reveal his/her identity. 3) Only whistle-blowers who are leaking information about criminal (or perhaps unethical) behavior should be accorded legal protection; if the leaked information is self-serving or illegal or, for instance, part of a government propaganda operation, it merits no shield. 4) Miller was not acting as a journalist, but working inside the New York Times as a water-carrier or accomplice (or even "neocon mole") for the White House agenda, and as such she has forfeited all First Amendment protection.

Let's consider these in reverse order, leaving the most serious for last.

4) This is wild supposition. Contrary to what some readers believe, Miller never wrote or published anything about Valerie Plame (which is one of the reasons why it's so bizarre that she's in prison). So if Karl Rove or whoever else in the White House leaked Plame's identity as part of a campaign to impugn Plame's husband, Joseph Wilson, Miller didn't participate in it. Was Miller's WMD coverage influenced by her personal beliefs, and more specifically by the neoconservative argument that Saddam Hussein's regime was dangerous and that war against Iraq was necessary? That's possible, even likely. All reporters, like all other human beings, form judgments that are affected by their ideological preconceptions and their views of the world. The fact that Judy Miller may have held an opinion that you or I sharply disagree with doesn't make her a mindless pawn of Paul Wolfowitz.

3) This one is entirely subjective. The distinction between "protecting a whistle-blower and protecting a hit man" has become the mantra of the lefty blogosphere on the Miller-Plame case. It sure sounds good. But, hey -- who gets to decide which is which? Readers of Salon and the Daily Kos? Or readers of, say, the National Review and the Wall Street Journal? Does the country get to vote on it? If so, how confident are you that the results will be gratifying? The Wednesday edition of the Journal, in fact, features an editorial titled "Karl Rove, Whistleblower" which opines that in leaking Plame's identity to Time reporter Matthew Cooper, Rove exposed "a case of CIA nepotism" and "provided important background so Americans could understand that Mr. Wilson wasn't a whistleblower but was a partisan trying to discredit the Iraq War in an election campaign."

Is that editorial just a craven mouthpiece for GOP talking points? Yeah, sure -- according to you and me. But one man's whistle-blower is, almost by definition, another man's traitor -- and the distinction is almost always going to be political. Backing away from Karl Rove for a minute, there really are people who believe that the Iraq war was necessary for our safety and the stability of the Middle East, and therefore believed that supplying crucial context for Joseph Wilson's criticisms of the war was in the public interest. More important, it's hard to imagine any law that divides anonymous sources into different categories, based on their social usefulness or the purity of their intentions, that wouldn't be subject to gross political manipulation. Would we really have wanted to see Ken Starr, during the Lewinsky investigation, armed with the ability to imprison any reporter he felt like who'd had an off-the-record conversation with George Stephanopoulos or Sidney Blumenthal? A law that shields anonymous sources from police and prosecutors, outside of the most exceptional circumstances, is the best way to guarantee real freedom of the press.

2) First of all, it's not clear that any crime was committed. There remains debate about whether Valerie Plame was a classified undercover agent at the time she was employed at CIA headquarters. First Amendment attorney Bruce Sanford, who helped draft the 1982 Intelligence Identities Protection Act, has argued that the leaks about Plame to Miller, Cooper and Robert Novak do not technically violate the act. It seems likely, as Salon's Farhad Manjoo has reported, that special prosecutor Patrick Fitzgerald is pursuing nothing bigger than an obstruction of justice charge against the leaker(s). Such a "puny crime," Sanford told Manjoo, "really does not justify this incredible disruption of the relationship between reporters and sources."

But there's a far more important issue at stake. This sudden reverence for the letter of the law is, to put it mildly, a peculiar argument to encounter on the left. Civil disobedience -- the refusal to obey laws you believe to be morally wrong -- is among the most venerable of our traditions. To cite a highly relevant example, Daniel Ellsberg almost certainly broke the law when he leaked the Pentagon Papers to the New York Times. (He was indicted for numerous felonies far more serious than anything the Plame leaker is likely to face; the case against him fell apart under the enormous weight of the government's Watergate-era misconduct.) As it happened, Ellsberg's identity was not a secret. But if it had been, then under the logic put forward by numerous Salon readers, it would have been perfectly justifiable to compel the Times' editors to identify him or face prison. Is there a moral distinction between Daniel Ellsberg and Karl Rove? Sure, but both of them broke the law in the act of leaking information to reporters. How exactly do we enshrine that distinction in the law?

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.

By Andrew O'Hehir

Andrew O'Hehir is executive editor of Salon.

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