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?"