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Saturday, October 09, 2004

The NYT's Judith Miller, Jack Shafer's "impossible minx," is no true martyr

By their jokes you shall know their true sentiments. Thus is Slate columnist Jack Shafer's ending line in an article entitled "God Bless Judith Miller: Two cheers for our courageous First Amendment martyr" revealing:

I am bewildered. I subpoena [federal prosecutor] Patrick J. Fitzgerald for an explanation.

Mr. Shafer knows, of course, that he has no subpoena power. But like Ms. Miller herself, he certainly seems to think that the press is above the law:

I don't think [Ms. Miller's] digging in as part of a calculated scheme to reform her image. She's the sort of contentious cuss who would be flipping the bird to the courts no matter what the circumstances. We journalists are lucky to have somebody as spirited as Miller telling the government, "This far and no further," and willing to defend our First Amendment rights beyond composing an op-ed piece.

God bless you, Judith Miller, you impossible minx!

I assume Miller intends to stare down Fitzgerald and Hogan all the way to the Supreme Court, and if the court hears it we can expect a re-sculpting of the First Amendment law. The legal issue at hand is whether reporters have a special privilege — not shared by civilians — to ignore subpoenas issued in good faith in criminal cases. The law of the land on this is the 1972 decision Branzburg v. Hayes, which found, broadly speaking, that reporters have no such special privilege under the First Amendment.

Quick question for you, Mr. Shafer: I had almost 400,000 page views for my blog in September. So am I entitled to the "special privilege" to ignore court orders that you'd like to see written into the law, or am I just a "civilian"? Here's a hint: I appear before federal judges regularly, and they all seem to think that I'm not only not entitled to special privileges, but that I'm subject as a lawyer to an even higher standard than "mere civilians." That's what goes with my profession — responsibility, not unaccountability. Odd that yours works the other way, huh?

As for re-sculpting First Amendment Law, here's another hint, Mr. Shafer: Check the amicus counsel in the Supreme Court opinion you linked — just search on "Floyd Abrams," he's there. There's absolutely no reason to believe that Mr. Abrams, as brilliant as he may be on her behalf, is going to be able to use Ms. Miller's case to change the holding of Branzburg v. Hayes — the majority opinion in which, as your article acknowledges, would permit enforcement of the subpoena against Ms. Miller after far less prosecutorial deference than Mr. Fitzgerald and his colleagues have shown to her and the press' interests.

Even if you support Fitzgerald's subpoena of Matt Cooper, Tim Russert, Walter Pincus, and others who wrote about the administration leakers, you must concede the subpoena of Miller is a total reach. Miller only reported on the story. She never wrote about it. Fitzgerald seems bent on penalizing Miller for her knowledge of the case rather than for her proximity to the purported crime.

No. No, no, no, a thousand times no! You're not even close, Mr. Shafer. Ms. Miller will be in jail neither for her knowledge of the case nor for her proximity to the purported crime. She will be in jail for contempt of court — specifically, for refusing to obey a grand jury subpoena, and a court order overruling her motion to quash it and ordering her to testify.

Ironically, the Intelligence Identities Protection Act was written to protect journalists from jail. Its authors intended to punish only government officials who deliberately compromised national security and U.S. publications and journalists that routinely exposed covert agents. They specifically crafted the legislation to exempt the odd reporter who reveals such information. That the law is now being used to indiscriminately line reporters up against the wall and menace them with a contempt sentence is preposterous.

Again, sir, how can you be so confused? The Act to which you refer wasn't "written to protect journalists," it was written to protect intelligence operatives, who potentially — and demonstratedly from past events — face far more than the risk of a cushy jail cell, and whose outings and resulting injury or death may threaten a national interest far greater than just their own lives, liberty, or safety. And neither Ms. Miller, nor Mr. Novak, nor any other journalist is being threatened with prosecution under the law; no reporter need feel menaced by the current application of that statute. Rather, the only reporters who need feel "menaced" by a contempt citation are those who've demonstrated their contempt for the DoJ's and judicial system's attempt to enforce the law.

Mr. Shafer, I'm a big fan of the First Amendment. I'm thrilled that, as your article correctly points out, DoJ guidelines and routine court practice has given the press substantial protection against indiscriminate use of government and private subpoenas that would compel members of the press to reveal confidential sources. But the First Amendment isn't absolute, nor the only compelling interest of our society. Your conflation of the issues is intellectually, even journalistically, sloppy. And your martyr, your "impossible mynx," is a scofflaw who deserves the jail cell that awaits her. As you aptly put it, she's "flipping the bird to the courts no matter what the circumstances," and these circumstances align her, her employer, and you squarely in favor of criminals and squarely against our national interest.

Update (Sun Oct 10 @ 3:00am): Predictably, NYT publisher Arthur Sulzberger has weighed in with an editorial urging Congress to pass a federal shield law that will expressly protect reporters like Ms. Miller from having to tell the truth when ordered to do so by courts. As part of it, he argues:

An essential tool that the press must have if it is to perform its job is the ability to gather and receive information in confidence from those who would face reprisals for bringing important information about our government into the light of day for all of us to examine. Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report.

Duh. Mr. Sulzberger, there's no "enforceable promise of confidentiality" now. The existing law is against you; the Supreme Court says the First Amendment doesn't mean what you'd like it to mean. Whoever talked to Ms. Miller (and Mr. Novak and whoever else) did so with no assurance that he'd be able to "enforce" any promise of confidentiality; to the contrary, if we engage in the fiction of your editorial (that leakers know and are influenced by the law), he did so despite existing law which says that after exhausting other means, a prosecutor and grand jury investigating a possible crime can indeed compel a reporter to reveal a "confidential source," on penalty of going to jail for contempt of court if the reporter refuses to do so. Ask Bill Burkett how many lawyers are swarming his door to try to get his "case" against CBS News for blowing his "confidential source" status. There's no shortage of folks willing to blab their guts out — even when it involves criminal conduct — to reporters who give them a wink and a nod.

The press — however it's defined (and that's problematic in itself) — is already the beneficiary of a qualified, limited privilege of sorts, the net effect of which is to complicate law enforcement efforts. That's fine; it's a price we can pay as a society to encourage the values you're arguing. But those aren't the only values of our society, and the press isn't — and damn well shouldn't be — totally above and outside the law. Reading this editorial, I'm at a loss to know which is the right question: "How stupid do you think we are, Mr. Sulzberger?" or "How stupid are you?"

Posted by Beldar at 07:23 PM in Law (2006 & earlier), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to The NYT's Judith Miller, Jack Shafer's "impossible minx," is no true martyr and sent a trackback ping are listed here:

» Media Watch: 2004-10-12 from Winds of Change.NET

Tracked on Oct 12, 2004 2:02:02 AM

» Protecting our rights or preserving their privileges? from Lead and Gold

Tracked on Oct 14, 2004 11:41:26 AM

» Beldar's scorecard on the DC Circuit's Plame decision today: Prosecution 34, Journalists 0 from BeldarBlog

Tracked on Feb 16, 2005 1:15:02 AM


(1) Thomas J. Jackson made the following comment | Oct 9, 2004 8:49:29 PM | Permalink

Very nice analysis. Call me stupid but I can't find exactly where in the First Amendment journalists are placed above the law nor have special priviledges that ordinary citizens do not have.

(2) Roundguy made the following comment | Oct 9, 2004 11:33:06 PM | Permalink

What precisely is the difference between an "unidentified", "anonymous", "unnamed", "government", etc. source and rumor, conjecture, innuendo, hyperbole, fabrication, etc.? This bugs me to no end.

I can print an article in the paper as author JK Fairy, stating that, according to unnamed sources, Beldar grows marijuana in a secret underground lab worth shekels in the gazillions.

Now Beldar, at his expense, is in the costly position of discrediting that assertion by legal defense or challenge. Yet even if he prevails (let's assume he would:-))and damages are awarded and a retraction or apology is printed, Beldar still has all the people who have seen or read this information who may or may not believe it. His reputation as an attorney is damaged yet he has no mass media way of expunging this myth from the public opinion.

Why then are journalists allowed, without challenge, to run an article of their own fabrication citing unnamed sources and never fall under any scrutiny, except from the victim? This is glorified gossip and I feel has nothing to do with freedom of speech. If it is then slander and libel can't be challenged in court.

Journalists are not only not above the law, they should be held accountable by an even higher standard. The enormous power of one single article, visciously attacking someone with, "unknown sources", can ruin a life, a corporation, a state, a country and on and on and on.

(3) RD made the following comment | Oct 10, 2004 2:05:49 AM | Permalink

What were the reporters' names that nailed Nixon to the cross over Watergate? something-berg and stein?

(4) June Cleaver made the following comment | Oct 10, 2004 2:08:44 AM | Permalink

Beldar, you don't seem overexcitable in general, so I'm forced to conclude you don't read Jack Shafer much. So FYI, Mr. Shafer has no principles whatsoever. Your attempt to appeal to them is, therefore, futile. Indeed, you probably amuse him as much as an earnest young Duma idealogue trying to square the Gulag with Communist ideals would amuse Joe Stalin.

Mr. Shafer spins the story of Ms. Miller the way he does largely because he is uncomfortably aware, as a member of the left-wing press, that these days most people think he and his colleagues have their head up their collective arses.

He would like to re-interpret that hostility as originating from envy. We're all jealous and uncomfortable because he and his friends are out front, exposing uncomfortable falsehoods underlying our pampered daily lives, and not, say, because the generic journalist feeds the public more untruth and distortion in 24 hours than the worst politician does in a twenty-year career. Hence it is necessary that Ms. Miller be re-interpreted as a heroine rather than the narcissist irrelevancy she is.

And do not also forget this keeps the Plame kerfuffle from sinking into justified obscurity, by hinting at dark Nixonian forces hankering after poor Ms. Miller's journalistic virginity. Which helps Mr. Shafer's favorite this November.

(5) MD made the following comment | Oct 10, 2004 11:22:17 AM | Permalink

Another good entry by Beldar, lucid, cogent, and persuasive. It's always good to see a piece on "privilege" that actually has contact with existing law, as opposed to the usual piece (such as Sulzberger's) that constructs a parallel universe of wishful and self-indulgent thinking. Kudos.

(6) Steve L. made the following comment | Oct 10, 2004 12:19:09 PM | Permalink

Roundguy got it dead right:

What precisely is the difference between an "unidentified", "anonymous", "unnamed", "government", etc. source and rumor, conjecture, innuendo, hyperbole, fabrication, etc.?

What's to prevent a reporter from just flat making it up? He could write anything he wanted to, then claim his sources are "confidential." No one could verify the source or reliability of the information. I'm sure the NYT would never put up with that. Oh wait. Never mind. They did put up with that didn't they, Jayson Blair?

(7) Assistant Village Idiot made the following comment | Oct 10, 2004 6:40:52 PM | Permalink

In addition to the excellent observations above, do not discount a simply lack of clarity of thought as an explanation. Journalists were raised on stories of reporter heroism in refusing to identify sources, and rather vaguely assume that the right to do so is unconditional. They regard arguments such as Beldar's as an attempt to find a legal loophole to catch them. The belief in this particular special privilege is in fact one of the foundations of the arrogance of the press: they see themselves as representatives of the True Faith, and attacks on them are interpreted as attacks on freedom of speech itself.

Thinking it through as a coherent philosphy just isn't part of the deal.

(8) bob k made the following comment | Oct 10, 2004 7:41:50 PM | Permalink

Beldar - a well crafted analysis done in your spare time - oh that the MSM could be a fraction as thoughful and conscientious doing their jobs!

(9) Catharine of Aragon made the following comment | Oct 10, 2004 9:22:03 PM | Permalink

There's an interesting point raised by Sulzberger's otherwise forgettable bit of narcissist puffery. Sulzberger feels strongly that he and the NYT represent we, the people, which is why Ms. Miller need not comply with the ordinary citizen's duty to assist the police in the investigation of a crime.

But of course the Justice Department feels equally strongly that they represent we, the people, and that the US Attorney is representing us in his pursuit of information from a private and recalcitrant citizen, viz. Ms. Miller.

So who is representing we the people here? The NYT or the Justice Department? Both claim they are, and both claim that, on that basis, they have the right to do unusual things -- put people in jail, or refuse to testify to a grand jury about facts pertinent to a criminal investigation.

I think a better case can be made for the Justice Department, because they are subject to the oversight of elected officials. If NYT reporters were elected and were subject to public recall or impeachment, a better case could be made for their having special powers and rights not granted to ordinary citizens, which prosecutors, judges, and other apparatus of the government have.

But otherwise, I think the idea that the NYT represents we the people is nonsense, and their rights as reporters should never exceed their rights as private citizens.

Of course, it's also true I like the idea of seeing a pampered New York snot like Judy Miller rotting in the pokey. Heck, I wish Sulzberger himself could be held in contempt and thrown in the slammer, too.

(10) Dan Kauffman made the following comment | Oct 12, 2004 2:27:40 PM | Permalink

Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report.

Oh then they would have to work harder? And under the new Overtime rules not get paid extra for it? I am SO dismayed by that picture. ;-)

(11) Mikey made the following comment | Oct 13, 2004 3:29:26 PM | Permalink

Very nicely done, sir. I would only add that not only is accountability the hallmark of a profession, but the necessary exercise of judgment. Ms. Miller and Mr. Shafer appear to lack that last requirement and, therefore, are not professionals.
At lease not in my estimation.

(12) David Ehrenstein made the following comment | Oct 19, 2004 3:26:01 PM | Permalink


(13) Alice Marshall made the following comment | Oct 19, 2004 3:27:27 PM | Permalink

Thank you for putting it so well. This wasn't just any CIA case officer who was betrayed, this was the case officer who was responsible for monitoring the spread of weapons of mass destruction. By ending Plame's effectiveness and placing her entire network of agents in danger (to say nothing or any ordinary person who merely crossed paths with her) our nation is at greater risk of attack. The possibility of someone smuggling in a dirty bomb or some such has been increased. Right now Miller is facing the possibility of a jail cell entirely through her arrogance. If terrorists succeed in another attack, in part because of Miller's silence, she faces a long horrible lingering death.

My view of Miller

My view of Plame

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