October 07, 2004
The Dangers of Journalism
October 7, 2004 02:32 PM
Apparently are not restricted to those who report from war zones--
A federal judge held a reporter in contempt Thursday for refusing to divulge confidential sources to prosecutors investigating the leak of an undercover CIA officer's identity.
U.S. District Judge Thomas F. Hogan ordered New York Times reporter Judith Miller jailed until she agrees to testify about her sources before a grand jury, but said she could remain free while pursuing an appeal. Miller could be jailed up to 18 months.
Weirdly enough, Miller never wrote a story about Valerie Plame, but the person who did publish Ms. Plame's identity as a CIA employee apparently has not testified on the matter. Robert Novak goes free while Judith Miller faces prison time?
Let's consider a couple of scenarios:
(i) Reporter A is told, by a witness B, about a crime committed by perpetrator C. Reporter A writes a story about the crime based, at least in part, on what witness B told him, which story is published by his employer newspaper. The story does not divulge the identity of witness B, and it may or may not divulge the identity of the perpetrator C. Prosecutor P calls reporter A before a grand jury to divulge the identity of witness B.
(ii) Reporter A observes a crime committed by perpetrator D. Reporter A writes a story about the crime based, at least in part, on what he observed, which story is published by his employer newspaper. The story does not divulge the identity of perpetrator D. Prosecutor P calls reporter A before a grand jury to divulge the identity of perpetrator D.
I have been following the Plame story to some extent, and it seems to me that the situation that Judith Miller finds herself in is more like scenario (ii) than scenario (i)--except for the fact that Miller did not write the story. From what I have read, the alleged crime was the divulgation of Plame's name as a CIA agent by a government employee. Whether or not the divulgation actually was a crime is another issue, but, if it was, and if the name was given to Miller--or even if it was just offered to Miller, and she refused it--it seems to me that she would be asked to provide evidence of a crime or potential crime that she actually witnessed, not to divulge the identity of a source that told her about a crime.
Suggesting that Miller should not be required to testify raises the obvious question: whether a person be exempt from testifying about a crime that he actually witnessed merely because he is a reporter? Suggesting that Miller--or, for that matter, Novak--should be exempt from testifying in this case suggests to me that the answer is "yes."
Why yes? The current federal law is quite clear that there is no exemption for reporters. See Branzburg v. Hayes, 408 U.S. 665 (1972).
Does the First Amendment's speech clause, just because it mentions the Press, provide greater protection to the Press than to individuals? Does the "history" of the Bill of Rights justify any such greater protection? Why was it deemed necessary to add the Press provision? After all, it is by means of individuals that there is a Press. As an individual, I want the same speech rights as the Press.
Why do you say that Robert Novak has not testified? The reports I've seen have indicated that he has refused to comment on whether he has testified.