Today’s entire NY Times editorial page is devoted to a lengthy (yawn) defense of Judith Miller’s right to keep her sources confidential and a variety of attacks on the Novak-Plame-gate special prosecutor, other news organizations (especially Time, Inc.) that agreed to cooperate, and basically everyone else who has the temerity to differ with the mighty Times. There’s a lot in the piece that I don’t agree with, but frankly I’ve got better things to do than work through all of them. So let me just make a couple of points.
First, the piece invokes the "Founding Fathers" and the First Amendment several times, and expresses confidence that James Madison et al. would be horrified by what happened yesterday. In a similar vein, the Times trots out the Pentagon Papers case as proof that Miller is doing the right thing. On both counts, not so fast. The Pentagon Papers case was a classic case of prior restraint – in Justice Black’s words, can the government "halt the publication of current news of vital importance to the people of this country." The Court said "no." But of course, no one has ever suggested that Bob Novak, or anyone else, could have been legally forbidden from publishing Valerie Plame’s identity as a CIA agent. This is not a case about prior restraint (the Times doesn’t give us much context for its quotes from James Madison, but I suspect that he was talking more about prior restraint than about what we have here). And the Times’s repeated invocations of the First Amendment therefore ring particularly hollow – in short, there is simply no legal authority, and there has never been any legal authority, for the proposition that the First Amendment authorizes journalists to refuse to cooperate with a grand jury investigation. Judith Miller, and the Times editorial board, may think that the courts are wrong never to have adopted their position. But they haven’t, so the fact is that Miller (and, by extension, the Times) are asserting that their own interpretation of the Constitution is more authoritative than that of the Supreme Court. If we are to remain a nation of laws, we can’t have private citizens running around claiming that their interpretations of the Constitution trump the courts. I wonder whether the Times would defend the folks linked in the previous sentence as forcefully as it defends its own reporter.
Second, the Times invokes at several points the fact that 49 states have adopted "shield laws" of one kind or another, and urges Congress to do the same. I think that a federal shield law probably wouldn’t be a bad idea. But let’s remember that here, the D.C. Circuit Court of Appeals unanimously held (at pp. 16-17 of the Opinion of the Court) that even if Miller and Cooper did have the benefit of a conditional "federal common law" privilege to shield their sources in some circumstances, it had been overcome in this case. So it is far from clear that a federal shield law would have made any difference (unless the law were drafted in absolute terms, which would be a bad idea and which seems unlikely to happen – I haven’t reviewed the 49 state laws on this subject, but I’d bet that most if not all of them are conditional rather than absolute).
I could go on. But I have things to do, and so do you. I wish Judith Miller weren’t in jail – it’s a sorry spectacle. But she brought this on herself, and her refusal to cooperate with the grand jury investigation continues to strike me more as hubris than a truly principled stand.
