The Judy Miller storm swirls on: Salon readers rally around Andrew O'Hehir, but the argument still rages.

Published July 15, 2005 7:31PM (EDT)

[Read "Judy Miller and the Press, Part 2," and "Imperfect Martyr," by Andrew O'Hehir. Previous letters can be read here.]

I, for one, appreciated Andrew O'Hehir's article exploring the ambiguities of the Judith Miller case, and the Plame incident in general. I am not surprised at the hostile response it generated, but even as a partisan Democrat I have found that I am more comfortable with ambiguity than most people are.

In particular I was gratified by O'Hehir's observations regarding the alleged emergence of the White House press corps as probing journalists. I only saw the Scott McClellan roasting on "The Daily Show," but my immediate impression was of several guys of dubious gravity gang-tackling McClellan in full-throttle snark mode. It was a pale imitation of actual journalism, but nonetheless I heartily enjoyed it.

Likewise, my take on Miller herself is tinged with schadenfreude. My evil, vindictive half views it as a win-win situation -- if she flips Rove gets burned, if she doesn't she's stuck in jail. My better angels are letting my dark side have its fun.

So I'll grant that O'Hehir is probably on the moral high ground here; but given that I have no real control over these events, I'll savor my guilty pleasures for the moment.

-- Paul Minot

Thanks to Andrew O'Hehir for his take on the reaction to the Judith Miller imprisonment. I am not familiar with the blogosphere on the left or right, and was surprised by the disproportionate reaction expressing enthusiasm or apathy for Judith Miller's imprisonment for protecting confidential sources.

O'Hehir seems to be making two points. One, that if we respect freedom of the press, we should be very concerned over recent events in regard to the Plame investigation. This seems like a no-brainer. Folks, this is a free country with a free press! That means for everyone. Even people we don't like, like the shill Judith Miller.

The second point of how the media can restore the faith of the public is more tricky. I don't see how we can return to the days where the media can be seen as the honest arbiter of truth, but frankly, that might be OK. The real threat here is that it seems like Americans are retreating from thinking critically about the news they receive from the media. You either believe or don't believe Fox News, Amy Goodman, or Salon.com. I think this is more of a function of a poor educational system and an increasing cultural divide. It's well beyond how the New York Times reported the run-up to the Iraq war.

-- Derek Burrows Reise

Thanks for confirming my belief that the world runs on cognitive dissonance. Liberals seem just as ready to close their eyes to what doesn't fit in with their scheme of things as conservatives. I tend to forget that when frustrated by my parents' (and, it seems at times, all conservatives') propensity for ignoring the inconsistencies in their beliefs.

It's "What's the Matter With Kansas" all over again. I'm not saying one has to deny the guilty pleasure of seeing Judy Miller in shackles, but those liberals who feel that she deserves it for keeping mum are truly lying to themselves, no less than the conservative Christians, who react against the liberal "culture of death" (as evidenced by their support for euthanasia and abortion), yet turn a blind eye to the 20,000 Iraqi civilian deaths directly caused by the war and the 100,000 indirectly caused by the war.

-- Frank Orifici

It is laudable that O'Hehir took the time to respond to reader commentary. But I found that his response was just further evidence of the gap between the public and the media on this issue. O'Hehir identified four major arguments made by Salon readers, and then proceeded to respond to them as follows.

4) You readers are wrong. This is a stupid argument.

3) You readers are wrong. This argument has a subjective component, and we can't trust anyone to analyze it objectively.

2) You readers are wrong. This isn't a liberal argument, therefore you can't make it.

1) You readers are right, but this is not a liberal argument, therefore you shouldn't be making it, and I'm right.

If the media truly wants to work to bridge the gap between them and the public, maybe it is time to acknowledge that these arguments can't be discredited so easily. This is a subject, like all First Amendment protections, that is subject to conditions and limitations. Why not discuss where those limits should be rather than arguing for blanket, absolute protection?

-- John F. Stanley

Today's article by Andrew O'Hehir caught my interest because I have been caught in the same quandary as many Salon readers. On one hand, Judith Miller is contemptible; on the other, the truest test of our commitment to civil liberties is our willingness to extend them to those whom we abhor. As a card-carrying member of the ACLU, I too have considered the similarities of the Miller situation and the Skokie case. However, O'Hehir is off the mark when he describes the two as "not approximately the same, but exactly the same." Here's why:

In the Skokie case, the issue at hand was the "right of the people peaceably to assemble," a right clearly stated in the First Amendment. The ACLU's case boiled down to an equal application of rights to all.

The Miller case is, then, completely different. What we have with Miller is not an abridgement of equal application of the law. Simply put, this is because journalists do not enjoy legal protections of confidentiality, as do doctors, lawyers and priests. (Even in those select cases, there is a delineation of what counts as protected confidentiality. Not everything you tell every lawyer is confidential.) If there were a law protecting journalists' promises of confidentiality, I would heartily support applying it to the Judith Millers as well as to the Amy Goodmans of the world.

Perhaps there should be such a law. However, journalists who currently wish to extend a pledge of confidentiality to informants clearly do so at their own risk. What admiration I have for Miller is in regard to her willingness to honor her word to her source. I do not, in this particular case, admire her choice to pledge confidentiality in a political hit on a whistle-blowing victim, but it is her choice to make. She can renege on her pledge, or suffer the consequences of honoring it.

Individuals who argue for protecting Miller out of a regard for what O'Hehir calls "a matter of fundamental principle" are in fact arguing for rights they wish they had (but do not). The First Amendment states, "Congress shall make no law ... abridging the freedom ... of the press." The courts have widely interpreted this to prevent prior restraint on publication, and often to protect the press after publication, but have never extended the First Amendment to provide a "freedom of the press to keep sources confidential." Such an interpretation is the only real argument on Miller's behalf, and is one that O'Hehir does not convincingly make.

In the meantime, I (and, apparently, the judge in this case) will continue to hold Miller in contempt for keeping a secret that benefits a political hit-man.

-- Kelan Steel-Lowney

It is with great interest that I have been reading Andrew O'Hehir's pieces on the Judith Miller case, and the letters published in response. It seems to me that there is general agreement that the function of reporters, in the case of leaks, is to use leaked information to protect society from abuses of power by elites. This is because leaks serve to provide information about the activities of narrow interests, activities which, if made public, would be generally opposed.

If that is correct, then the key question is: Might it be possible that providing such information -- what we might call the "good" kind of leak -- violates the law? The answer, as O'Hehir points out, is "yes." If it was the case that "bad" leaks -- those, like Karl Rove's, designed to promote narrow interests at the expense of society -- were always crimes, then it might be reasonable to expect that the law should compel journalists to divulge their sources.

However, if it is the case that "good" leaks -- those that promote democracy by providing information about the activities of narrow interests that affect the broader society -- might also be illegal, then deciding whether a leak is "good" or "bad" is beyond the purview of the law, because the law is designed to determine what constitutes a crime, not what is good for society. In this latter case, whether we like it or not, journalists should not be compelled to divulge their sources.

It seems to me, then, that O'Hehir and his critics are at an impasse. My conclusion is that our positions will depend on the relative faith we have in the media and in the justice system. If we believe that the law (specifically judges) is more likely to distinguish between "good" and "bad" leaks than is the media (specifically reporters), then it follows that Judith Miller should be jailed; if we believe that reporters are more likely than judges to distinguish between "good" and "bad" leaks, then it follows that Ms. Miller should not be jailed.

At the risk of over-generalizing, I would characterize the former position as that of the mainstream left: the news media has failed us, and therefore we need judicial oversight. In addition, I would characterize the latter position as that of the radical left: the news media has failed us, but the justice system is incapable doing much about it. In other words, the debate seems to be between those of us who still have faith in the government -- or at least the justice system -- and those who don't.

This latter position seems justified for two reasons. First, the law is itself subject to interpretation, and history shows us that attempts to protect certain classes of persons can be used against those very persons. Consider, for example, the use of strict scrutiny in affirmative action decisions. Strict scrutiny was originally used to protect a "suspect class" that had suffered racial discrimination, but is now often used to protect white majorities against so-called reverse discrimination. One example of this that has been on my mind lately is the 1989 Supreme Court ruling in City of Richmond vs. Croson, in which Sandra Day O'Connor sided with the majority against affirmative action.

Second, the justice system is well-equipped to deal with individual rights, but not social responsibility. Frankly, I do not believe that the legal system is adequate to the task that we assign to reporters, which is to work against abuses of power. Unfortunately, this latter position means that there are no social constraints on journalistic behavior; the only check on the media is individual citizens, which, given the corporatization and consolidation of media over the last several years, does not bode well.

-- Asim Ali

I am writing to applaud Andrew O'Hehir's "Imperfect Martyr," and to add one more voice to the small number of letters in support of the principle (rather than the principal) at stake. The guarantee of confidentiality is paramount in the ability of the press to gather information, and hence, vastly more important than the individuals involved. I have to wonder why so many people are willing to watch another fundament of the Constitution erode in the service of punishing an individual, be it a reporter whom they deem inadequate, or an administration official (who may well deserve to burn ... as it were).

Questions about Judith Miller's abilities as a reporter and the character of her source are separate and secondary to the importance of a free press. While I can't say I admire her reporting, I do admire her courage and conviction in defending an important right, and the personal sacrifice she has made to that end.

As O'Hehir noted, it is in murky situations, like Skokie, that these principles are most tested and consequently require the strongest defense.

The real genius of this administration may lie in contriving and manipulating situations that contribute to the erosion (or outright removal) of rights we hold sacred.

-- Elise Swope

By Salon Staff

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