my pissant two cents

Monday, November 29, 2004

media blips

the washington post is aghast at the investigation into who has been leaking delicate information to reporters. in a front-page analysis piece in today's issue, by charles lane, the post frets over the possibility of jail terms for reporters who refuse to divulge their sources.

i am all about a free press. before i became a lawyer, i was a journalist for many years, an emmy award-winner trained at columbia university's graduate school of journalism, the best in the world. i have studied and taught censorship law, always with the guide provided by the words of james madison: "knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives." i, however, do not believe in a press unfettered by responsibility and accountability.

the current free press flame-up is based first and foremost on the outing of valerie plame, a covert c.i.a. operative. in case you haven't been paying attention, her identity was leaked to reptilian rightwing pundit robert novak, who promptly made said information public. the purpose was to punish her husband, former ambassador joseph wilson, for calling attention to the bush administration's lies about iraq's alleged purchase of nigerian uranium. wilson was in perfect position to debunk bush's claims, because he had been sent to niger to investigate the allegations by the bush administration. so he had to be discredited, and the only way to do so was by outing his wife as a spook.

this is a violation of a federal national security law that prohibits this very sort of thing, and makes it punishable by up to 10 years in prison. novak is a republican hack with the scruples of a rutting boar, but none of the personality. he happily took part in a felony, and so far hasn't had to answer for it.

strangely enough-- and here i agree with the post-- patrick fitzgerald, the u.s. attorney in chicago who was called in to investigate, has not publicly addressed whether novak is being investigated. those whom he has gone after, matthew cooper of time magazine and judith miller of the new york times, are far less culpable than novak, especially since novak clearly knows who the original leaker was. cooper and miller face 18 months each for contempt for refusing to identify their sources before a grand jury. neither fitzgerald nor novak will discuss whether novak was subpoenaed to appear. could it be that he worked a deal with his source, guaranteeing his freedom from prosecution? and who would have the power to make such a deal?

the ultimate irony of this is that novak publicly chastised dan rather for refusing to identify his source on the bush national guard story. this bit of slime earned novak a "douchebag of the week" award from "the daily show." couldn't happen to a nicer guy.

the reporters' attorneys, and attorneys for other media outlets, are calling for creation of a reporters' shield law. such a law would protect reporters who refuse to finger their sources. this is typically a good thing, where insiders inform on illegal and/or immoral goings on in government and business, and only through their disclosures can the truth come out. if a reporter can be compelled to identify such a source, the loser in the grand scheme is the public that doesn't get that information.

this, however, is not one of those cases. this is the deliberate, malicious exposure of a covert operative, with full knowledge of its potentially deadly consequences to mrs. plame's contacts, for strictly political purpose. there is no honor in hiding behind the first amendment to be a political hatchet man.

the agument is somewhat moot, because there is no federal shield law. the supreme court in 1972 decided in branzburg v. hayes that the press is not insulated from answering grand jury questions, reasoning that the press is not granted greater latitude than the general public in cooperating with investigation into criminal acts.

first amendment stalwart floyd abrams is among those pursuing a court decision that creates such a privilege. (disclosure: abrams was a professor at columbia j-school, and co-taught the first amendment law class. i had no personal interactions with him.) he argues that the patient-doctor privilege has been expanded to include social workers, so there is a parallel to be drawn to shield laws, which have expanded from 17 states in 1972, to today's 49 states and the district of columbia.

i, for one, am against it. rights come with responsibilities. when you publish, you do so under the same laws that cover the rest of us. you have no greater rights, no lesser rights. granted, there may be times when the public's need to know justifies the breaking of a law. i'm all for that, and i'll fight like a tiger for the reporter who's called out for it. but this ain't that, and i'm sure floyd abrams and the 23 media outlets that signed onto an amicus curiae brief know the difference.

what i fear is a bush v. gore-esque supreme court decision that draws some kind of irrational, byzantine factual distinction so that it only applies to this case. that way, the bush insider who outed valerie plame gets away with it, and cases where there are legitimate reasons to protect sources have no protection at all. the power of precedent means nothing to federalist society types like rehnquist, scalia, and thomas, so it's entirely possible.

if it happens, remember you got the scoop here.


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