Pressing Freedom

July 7, 2005 7:44 AM

Judith Miller Goes to Jail...for not revealing her source.Opinions seem to differ on Miller's personal credibility and reporting history. But is that the issue?
posted by Jon-o (62 comments total)

No. If reporters are allowed to protect their sources, then her case is not distinguishable from another. And if reporters are "allowed" to protect their sources, then we should be clear about what we mean by "allowed". Miller argued in court that her refusal to testify is an example of civil disobediance where she must follow her conscience. That is not an argument against her being jailed. An essential component of civil disobediance is the willingness to accept the consequences of that disobediance. That's part of what makes it effective. Additionally, one's duty to one's conscience and one's duty to society in respecting the rule of law are both valid and both can be satisified by engaging in civil disobediance but accepting the legal consequences.

If we want to claim that reporters have presumed full legal sanction for their protection of their sources, then we have to accept that doing so raises a whole host of practical difficulties that we probably would rather avoid. Therefore, we should keep the status quo which has this "right" as being very vague, undefined, and evaluated on a case-by-case basis. And sometimes that means that a judge will decide that a reporter must divulge their sources. And the reporter may refuse. And they may be jailed. This is how it has worked, and it has worked. It's working now. It is not an injustice that Miller is going to jail, but one can nevertheless be sympathetic to Miller. One can also be hostile to Miller for her reporting and the responsibilities she assumed by her manner of reporting while still seeing this particular issue (the divulging of sources) as nothing more than a specific instance of a general issue.

I disapprove, strongly, of Miller's past reporting and believe that she, as a person and as a journalist, has a lot to answer for because of it. I approve of her jailing because the system is Working as Designed. I sympathise with her and approve of her decision to refuse to divulge her source(s). All this may seem contradictory, but it's not. The world is a complicated place.
posted by Ethereal Bligh at 8:12 AM on July 7, 2005

What does her past reporting have to do with anything?

This is all about a story that she didn't write.
posted by mosch at 8:44 AM on July 7, 2005

If we want to claim that reporters have presumed full legal sanction for their protection of their sources, then we have to accept that doing so raises a whole host of practical difficulties that we probably would rather avoid.

like what? freedom of the press? the fourth estate? checks and balances? the ability to question those with real power? they sound like rather useful things to me.

'sfunny how when it comes to the internet, information just wants to be free. people can copy music to their heart's content. anyone who raises "difficulties" is painted as a luddite who doesn't "get" the fluid flow of information. yet when it's a free speech issue with political consequences - precisely the kind of thing that rights are meant to protect (you don't need the protection of rights when you aren't upsetting anyone) - it's suddenly "complicated" and better to send people to jail.

sure, it's not always what you'd like. but if you start adding conditions, you give the power of censorship to those with real power. the very people the press is meant to protect us from. that's why you give argue for blanket rights to free speech. so that you guarantee that right. so that, when it gets real nasty, you can still find out the truth. so that people can still publish info about guatanamo bay. so that people can still publish info about government corruption. cases when there will be even more political pressure for silence than here.

An essential component of civil disobediance is the willingness to accept the consequences of that disobediance. That's part of what makes it effective.

that's rather disingenuous. another part of what makes it effective is people supporting those who take such a stand, rather than happily waving them off to jail.

I disapprove, strongly, of Miller's past reporting

i have no idea who she is. this looks like cut + dried intimidation against journalists. are you sure you're not being influenced by your opinion of her work? if this had been a report about abuses in iraq, or wmds, would you really feel it was so important to follow the party line, or would it suddenly seem much more important for speech to be valued?
posted by andrew cooke at 8:45 AM on July 7, 2005

This is fucking idiotic. Her source committed a crime. She should have no protection.

This should not be an issue at all. Why are we debating this?
posted by wakko at 8:49 AM on July 7, 2005

The whole point here is that the crime that was committed was the outing of a CIA operative, which is a felony. Miller and Cooper have information about this and they've refused to testify, and they're getting jaiiled for contempt of court. What would you propose? That contempt of court applies to everyone except journalists?
posted by bshort at 8:52 AM on July 7, 2005

I approve of her jailing because the system is Working as Designed.

But was it designed right?
posted by biffa at 8:55 AM on July 7, 2005

i would propose that you have the right to remain silent in a court of law and the right to free speech.

is it really that complicated?
posted by andrew cooke at 8:56 AM on July 7, 2005

I like to view this as a win win situation: Miller is upholding a noble principle, and the readers of the NYT are not subject to her terrible reporting.

I don't believe for a minute that Judy Miller is doing this on principle. She's shown willingness in the past to divulge sources. She just doesn't want to anger her contacts at the White House. She is the White House's war-mongering lap-dog at the NYT, and I wouldn't trust her to guarantee the anonymity of anyone who is not a criminal.
posted by gesamtkunstwerk at 8:58 AM on July 7, 2005

Her source committed a crime.

So fucking what.
Reporters use criminals as sources all the time.

We wouldn't know HALF of what we know about organized crime and the Drug Cartels if was not for this.

An unscrupulous Administration with, let us fantasize, control of congress and the judiciary, could pass "Secrecy Laws"... so leaking nearly anything could be interpreted to be breaking the law. But that's just a fantasy, right? WRONG. We have this administration with near absolute power (thanks Ralph Nader). Ever hear of the Patriot Act?

Now leaking the Pentagon Papers would technically be a "crime".

Breaking the law? It's called for The Greater Good.

Judith Miller is fucking idiot. But so what? The fact is there are now sources buried in the Pentagon and intelligence agencies that could barbecue Bush with real facts that are now going to keep their fucking traps shut. So. Gee. Thanks Move-on.
posted by tkchrist at 9:09 AM on July 7, 2005

So fucking what.
Reporters use criminals as sources all the time.

Breaking the law? It's called for The Greater Good.


No, it's really called breaking the law.
posted by wakko at 9:14 AM on July 7, 2005

But is that the issue?

Not for me. The issue for me is that she was a witness to a federal crime. From what I understand, reporters are not shielded in that instance, when it comes to grand juries. I sympathize with her, but at the same time I don't think it's unjust.

I mean, let's say that instead of an leaked identity, that this case involved a kidnapping and the source was the only person who knew where the person was and most likely is the person comitting the crime. Should reporters have the right to not reveal their sources in that case?
posted by shawnj at 9:20 AM on July 7, 2005

Politics taints probe of CIA leak

"Nor is it an accident that this investigation, rather than fingering whoever inside the administration broke the law by outing Valerie Plame, is instead putting the squeeze on two news organizations that just happen to have been critical of the Bush administration, Time magazine and The New York Times, and by extension the entire press corps.

There is no federal press shield law protecting the right of reporters to protect sources, though several states have such laws. And the Supreme Court, in a 5-4 decision back in 1972, rejected the contention that the First Amendment implicitly gives reporters immunity from betraying sources.

As a result, reporters remain vulnerable to selective prosecutorial harassment. In the past, the press has taken big risks to pursue the public interest and has resisted prosecutors' demands to betray sources. Some prosecutors and judges have trod lightly, balancing the First Amendment against other public imperatives, though others disdain the idea of journalistic privilege, and some reporters have indeed served time.

This case is particularly outrageous because a partisan prosecutor is training his guns on the wrong culprits, because the whole affair smells of politics, and because the press as a whole has been far too intimidated instead of standing with the Times and turning a bright spotlight on Fitzgerald and Novak."

posted by ericb at 9:20 AM on July 7, 2005

Her source committed Federal a crime ,that is considered by me to be treason, while being paid by the taxpayers.

If some greaseball Guido wants to squeal on the Godfather that is one thing. It is different than a government employee running around pointing out spies to everyone.

But hopefully they both end up just as dead.
posted by Rubbstone at 9:25 AM on July 7, 2005

I wouldn't be too worried about Miller: she'll be housed in a Club Fed white-collar, minimum security facility for a few months while the grand jury proceedings are carried out. Once the investigation is over, she'll be out, and with journalistic "street cred" that will help her garner bigger stories and salaries.
posted by Rothko at 9:31 AM on July 7, 2005

Judith Fucking Miller is not protecting a whistleblower.

Judith Fucking Miller is protecting the person who was *attacking* the whistleblower, namely, Joe Wilson.

This is a complete perversity of the idea of protecting sources, and if this is what protecting sources means, I'm all for making sure that there is *no* protection of sources.

Now, she's in jail for Civil Contempt, and when Fitzgerald files charges, I dearly hope one of them is criminal contempt, if not aiding and abetting.

Oh, and Judith Fucking Miller, perhaps you can look for WMD in your fucking cell. And one more thing. It's been nigh on four years since we were attacked. Perhaps you should look for Osama Fucking Bin Laden?
posted by eriko at 9:33 AM on July 7, 2005

What would you propose? That contempt of court applies to everyone except journalists?

Actually, most states have laws to this effect. In half of the states, journalists have an absolute privilege not to testify, even in a criminal proceeding. In many others, there is a qualified privilege that involves a balancing test.

It's a fair question whether the "reporter as witness to a crime" distinction should matter here. But more broadly, reporters do have a special status in the U.S., at least outside of federal court.
posted by brain_drain at 9:33 AM on July 7, 2005

After all this time, I still fail to understand how people can claim that the NY Times is "critical of the Bush administration" when they employ Judith Miller. As has been pointed out, she's not being 'selectively harassed' because of her journalistic sources... she didn't publish the information. She's being 'harassed' because she witnessed a federal crime and won't testify.

Andrew, the 5th amendment only gives you the right to refuse to testify to avoid incriminating yourself. And the Miranda right (if that's what you're talking about) applies to the police -- not the court. The court can and often does compel people to testify. If you refuse to testify after being compelled, you are in contempt and can be imprisoned.

I totally understand why Miller might refuse to reveal her sources. She wants to retain them as sources. That makes perfect sense. But her sources are criminals and it is the court's job to find them and convict them.
posted by jlub at 9:34 AM on July 7, 2005

Billmon: "I want her to pay for what she did -- not to Plame (she never even took Rove's bait) but to the American people she helped manipulate. And if the only way to do that is with a contempt citation, well, my heart says "bring it on." But it bothers my head that my heart is so casual about ditching long and deeply held principles. So I've been doing a little rationalizing, to see if I could come up with something more substantial than moral digust to justify putting Judy Miller behind bars. Unfortunately, I can't. "
posted by sfenders at 9:36 AM on July 7, 2005

i would propose that you have the right to remain silent in a court of law and the right to free speech.

is it really that complicated?

No, it is not complicated. The rules are easy to understand.

Anyone can be compelled to speak in court, unless it will incriminate oneself.

Legally speaking, there is no "free speech." Different types of speech are protected to different degrees.

Journalists don't have any privilege of confidentiality. They never had any such privilege, and they never will. Some professions, such as physicians, do have such a privilege. This is because society is better off having patients who know they can tell their doctor anything without fear of it being publicized.

Every once in a while a reporter thinks he or she should have this privilege too. It is really a pointless exercise on their side, but the media loves to report on itself and its self-proclaimed champions and heroes.
posted by turner13 at 9:48 AM on July 7, 2005

It's strange that this is over a story she never wrote.

I'm very sympathetic to the notion that she should not have to reveal her source, but, on the other hand, what's being protected here is a crime. People (reporters) who revealed the information in articles should have to suffer consequences for that, felony conspiracy, maybe, I don't know. It's always tempting to argue by analogy in these cases, but I'm not sure if it is useful or not. I know that if someone tells me in a session that they have plans to kill someone else, I have to report that to the police. Not doing so is against the law. Miller was no where near that in this case (again, leaving her other irresponsible reporting aside), but having to face consequences for abetting someone committing a felony does not seem like a bad idea.

I don't know, I'm confused.
posted by OmieWise at 9:50 AM on July 7, 2005

Before we grant some extra-Constitutional set of privileges to this exalted class of citizens called journalists, it should be noted that we have no reliable way of identifying individual members.

I like to investigate local events, write about them and publish them at the local Kinkos. So that makes me a journalist, right? My friends at the Greendale Village Shopper Guide, they're journalists too? And the guy publishing his inane ramblings on his stupid blog, him too? Who isn't a journalist?

Freedom of the press applies only to those who have a press. But this is the 21st C, everyone has a press.
posted by klarck at 9:54 AM on July 7, 2005

Freedom of the press applies only to those who have a press. But this is the 21st C, everyone has a press.

Bloggers aren't journalists, legally speaking, and receive no special protections thereof. Freedom of the press still only belongs to those who own the presses.
posted by Rothko at 10:09 AM on July 7, 2005

But this is the 21st C, everyone has a press.

Hey, I don't have a press. I don't even have a laser printer. But yeah. If I promised to keep my sources for this comment secret, I would feel compelled to honor that pledge. I probably wouldn't be willing to go to jail over it, but still I can see how it might be considered the right thing to do.

However... much as we might like to think so, running a blog is still not quite the same thing as working as a reporter for the New York Times.
posted by sfenders at 10:11 AM on July 7, 2005

WTF are you talking about, eriko? Are you asserting that Wilson blew his own wife's cover to make it appear that the administration was exacting retribution?

wakko, you seem to live in the USA, where distributing information about defeating copyright protection is a crime. So why should we care what one criminal thinks about another?

And all you media mavens who are up in arms because Miller got duped on WMD. WTF are you talking about? She's not the only reporter to get this wrong, the only reason it was a disappointment is because she has done so much quality work in the past.

The really interesting part of this is that we don't know if Novak squealed or not, and Cooper's source told him to go ahead and spill. So if it's the same source, how come Miller didn't get the go ahead, and if it is a different source, it is entirely possible that her source is not the leaker at all, and is therefore not a criminal. Or at least didn't commit this crime. And it leads to the question: How many people know the identity of Novak's initial leaker/blower of cover? Is it an "open secret" in the administration? Is it being prosecuted to punish the leaker or for some other reason?
posted by mzurer at 10:17 AM on July 7, 2005

If journalists have some privileged distinction, that is equivalent to denying that distinction to the rest of America's citizenship.

Do we really want a world where only "licensed journalists" or some such can reasonably publish? We are all journalists, as far as the law is concerned, and that's as it should be.

It's a similar problem as with trying to make "legal immigrants" carry some ID. Then every citizen must be able to prove they are not in violation of that statute.

Noted racist creep and genius paranoid Tim May called this years ago.

on preview: what klarck said.
posted by sonofsamiam at 10:24 AM on July 7, 2005

No, it's really called breaking the law.

Give it rest J Edgar.

Jeebus. Now every lefty is suddenly all Law and Order Republican. I suppose you always drive the speed limit? And never jay-walk? Smoke pot? Did you drink when you were under-age? You better be for enforceing EVERY law.

Point is we break the law for a greater good (and no I'm not saying speeding is a greater good unless your getting somebody to the hospital) or when a given law or action of law is unjust... not that I am endorsing a non-rule of law society. But sometimes.

Like those WTO protests that violated "Free-speech zones" and trespass laws. Or blocking shipments of nuclear waste in protest of proliferation. Now those people except that their violation leads to incarceration as PART of the protest of a greater good.

However, when we pursue THIS particular case we will freeze out the very sources we need - the whistle blowers - to break the grip on power of a ruthless administration engaged in immoral actions. It is a chain reaction.
posted by tkchrist at 10:41 AM on July 7, 2005

Would Judith Miller support a journalist who refused to testify against a child pornographer whom they wrote a story about? Absolute journalistic privilege gets absurd very fast.

However, the answer to the problem posed by the Judith Miller Case is simple:

Stronger whistle blower protection laws

If we have that then journalists won't need to be afraid to reveal their sources in cases like "the pentagon papers," and there is no need for some special privilege for journalists.
posted by afu at 11:12 AM on July 7, 2005 [1 favorite has favorites]

Two points I think supporters of Miller's jailing miss:
1. Miller and journalists in general are not claiming any "privilege" to violate the law. The First Amendment is for all citizens; it is protection against the government.
2. The government is relying on secret evidence to prosecute Miller. It won't disclose why it believes Miller's testimony is so important.
In going to jail, I believe, Miller is standing up for the rights of all citizens against a zealous government prosecutor and a horribly blinded court.
The New York Times editorial today (reg/req) gives historical perspective of this view:
"Among those principles deemed sacred in America," [James] Madison wrote, "among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press."
Mr. Fitzgerald's attempts to interfere with the rights of a free press while refusing to disclose his reasons for doing so, when he can't even say whether a crime has been committed, have exhibited neither reverence nor cautious circumspection. It would compound the tragedy if his actions emboldened more prosecutors to trample on a free press.
posted by sixpack at 11:18 AM on July 7, 2005

Now leaking the Pentagon Papers would technically be a "crime".

Ellsberg leaking the Pentagon Papers 34 years ago was illegal. That's why it was (and hopefully, is) considered brave of him to have done it anyway.
posted by jperkins at 11:23 AM on July 7, 2005

afu writes "Stronger whistle blower protection laws

"If we have that then journalists won't need to be afraid to reveal their sources in cases like 'the pentagon papers,' and there is no need for some special privilege for journalists."

I don't see how it would help Miller, unless you're proposing the "stronger whistleblower protection laws" carry also an exemption from laws regarding treason by high Executive officials. On the other hand, isn't the debate here is being derailed by ideologic preferences, with both sides trying to view Miller as a new Ollie North and acting accordingly?
I think technology advances have turned the term "press" into a undefined word - saying blogs can't be part of the press is as wrong as saying all bloggers are journalists. Some are, some are not - but the owners of traditional press media will fight hard to keep everybody who does not owns a press/TV/radio station from benefiting from any press freedom principles (since they have their business at stake). On the other hand, we will have a very hard time re-tracing this line.
posted by nkyad at 11:40 AM on July 7, 2005

Are you asserting that Wilson blew his own wife's cover to make it appear that the administration was exacting retribution.

No, Plame's name was leaked to punish Wilson for not going along with the "Iraq has WMD" line the administration was playing -- and Miller was cheerleading.

He pointed out that the evidence said no such thing, so they destroyed his wife's intelligence career.

IOW, Wilson was the whistleblower. How does Judith Fucking Miller's refusal to testify protect the whistleblower? It doesn't -- it protects those who were punishing him for pointing out the government's lies in the leadup to the Gulf War.
posted by eriko at 11:42 AM on July 7, 2005

Ellsberg leaking the Pentagon Papers 34 years ago was illegal. That's why it was (and hopefully, is) considered brave of him to have done it anyway.

We better lock that fucker up! Law breaker!

I suspect 75% of the people screaming "She Broke The Law" don't even know what the reference to the Pentagon Papers meant.

Stronger whistle blower protection laws

I completely agree. And as part of Whistle Blower protection we could implement a clause to protect journalists if a grand jury determines a specific reporter passes Greater Good muster BEFORE rushing to the public court and indicting on contempt.
posted by tkchrist at 11:46 AM on July 7, 2005

from the same NYT editorial that sixpack quotes:

the common good is best served in some instances by private citizens who are willing to defy a legal, but unjust or unwise, order.

This tradition stretches from the Boston Tea Party to the Underground Railroad, to the Americans who defied the McCarthy inquisitions and to the civil rights movement. It has called forth ordinary citizens, like Rosa Parks; government officials, like Daniel Ellsberg and Mark Felt; and statesmen, like Martin Luther King.

absolutely sickening to compare judith miller in any sense to rosa parks or even mark felt.

judith miller is only serving the interests of the abuser of power who outed plame. she's a lapdog.

no whistleblower, the kind of people shield laws are meant to protect, would be afraid to come forward if she were to comply with the grand jury's order. it just doesn't follow. it's like comparing apples and treason.
posted by Hat Maui at 12:02 PM on July 7, 2005

Protecting a source should not always be seen as a moral good.

Reporters should make good calls as to when confidential sources should be used, and protected. We should judge journalists not only because they go to jail to protect sources, but look at the whole scenario. In this case, there seems to be no public good served by protecting this source. No good public information was produced.
posted by brucec at 12:02 PM on July 7, 2005

Judith Fucking Miller is protecting the person who was *attacking* the whistleblower, namely, Joe Wilson.

I thought the "namely, Joe Wilson" referred to whom you assert she was protecting, not the whistleblower, but I get it now.

That being said, Judith Miller is attempting to protect someone who may or may not be the person who leaked to Novak. And if it's not the same source, that person may or may not be in danger of losing his job because the actual source is higher up in his organization. Or the leaker is someone like Rove, who could ruin their political future no matter where they are.

Why are you so sure Miller is a stooge?
posted by mzurer at 12:13 PM on July 7, 2005

Journalists don't have any privilege of confidentiality. They never had any such privilege, and they never will. Some professions, such as physicians, do have such a privilege. This is because society is better off having patients who know they can tell their doctor anything without fear of it being publicized.

Every once in a while a reporter thinks he or she should have this privilege too. It is really a pointless exercise on their side, but the media loves to report on itself and its self-proclaimed champions and heroes.


BINGO! Nailed it on the head.
posted by Steve_at_Linnwood at 12:25 PM on July 7, 2005

Reporters should make good calls as to when confidential sources should be used, and protected

Prosecutors and judges should make good calls as to when people ought to be sent to jail for not testifying in grand juries. Why does it matter exactly who Miller's source is? Unless the government is trying to track down all leaks. Is that what the Miller critics want? Tighter control of information coming out of the Bush Administration?

If the government can arbitrarily decide which sources must and must not be disclosed then there will be a chilling effect on all future sources' willingness to talk to all journalists. Miller is taking a stand on an important issue, don't let your disgust for her mistake on a particular story color your judgement of what is happening here.
posted by mzurer at 12:34 PM on July 7, 2005

judith miller is only serving the interests of the abuser of power who outed plame. she's a lapdog.

Wrong. Again, the principle here is not the journalist. It's not the source she spoke with. It's the Bill of Rights. "Congress shall make no law... abridging the freedom of speech or of the press..." Why? Because, dammit, the nation's founding fathers knew exactly the value of a free press -- and of free speech -- as a check against government tyranny.

This whole incident is an astonishingly ballsy exercise in expanding government secrecy. Citizens are faced with a government prosecutor whose investigation of a supposed felony results not in the jailing of any criminals, but in the punitive incarceration of a journalist who was merely doing her job. That's why many journalists, despite the cynical view of many on this page, regard this as serious infringement of the First Amendment.

And, yes, going to jail on principle does make Judith Miller the moral equivalent of Rosa Parks (who by the way spent a total of 2 hours in jail after being arrested for her act of civil disobedience).
posted by sixpack at 12:46 PM on July 7, 2005

sixpack; your right. Has everyone else gone insane?
posted by tkchrist at 1:07 PM on July 7, 2005

A lot of this argument seems to me to be happening in the dark. We don't know who Miller's source is, and thus don't know if her source is the person who outed Plame, or a person outing the person who outed Plame.

This difference, in legal terms, seems important to me. If her source is the individual who outed Plame, this really is different than, say, Deep Throat. Mark Felt was an informant with information about crimes committed by others. So, Woodward & Bernstein's anonymous source committed no crimes himself, thus his identity was not of legal significance. In this case, the anonymous source(s) who provided Valerie Plame's identity as a covert CIA operative committed a felony in providing that information. Since the anonymous source IS the criminal, the courts feel that they have no right to confidentiality.

If, on the other hand, her source is not the one who committed a crime, we have a very different debate. I really don't think a legal precedent has been set for anonymous sources who have not committed a crime themselves to lose protection. But then again, I'm not a lawyer, so....
posted by LooseFilter at 1:19 PM on July 7, 2005

Journalists don't have any privilege of confidentiality. They never had any such privilege, and they never will. Some professions, such as physicians, do have such a privilege. This is because society is better off having patients who know they can tell their doctor anything without fear of it being publicized.

Every once in a while a reporter thinks he or she should have this privilege too. It is really a pointless exercise on their side, but the media loves to report on itself and its self-proclaimed champions and heroes.

This is completely wrong. Do 60 seconds of Google research and you will learn that the reporter's privilege is recognized in most U.S. jurisdictions (albeit not uniformly among federal courts). Maryland has had a reporter's shield law for 100 years. The scope of the privilege varies among jurisdictions, but it is flatly wrong to say there is no such thing.

There are certainly valid policy arguments to be made for or against a reporter's privilege. And there are good arguments on both sides as to whether a privilege should apply in circumstances like Judith Miller's. But there's no basis to say that reporters are making the privilege up out of thin air.
posted by brain_drain at 1:22 PM on July 7, 2005

Prosecutors and judges should make good calls as to when people ought to be sent to jail for not testifying in grand juries.

Totally agree. And this judgement (and not the law) is what would protect future sources, since the law doesn't actually protect them. However, in this case: good call. The prosecutor's zeal is warranted in this case, because of the need to find the 'source' who committed the crime, or to at least investigate if a crime was committed. The source protected was not revealing information for public good but rather to intimidate a source.

government can arbitrarily decide which sources must and must not be disclosed then there will be a chilling effect on all future sources' willingness to talk to all journalists

OK, but the net result of the Plame case, if not prosecuted or exposed, would be less willingness to speak out. Less speech, not more. Plame's husband was punished by a government official because he spoke against the administration. That official is using the informal protection of sources 'rules' to hide behind. Not exposing this would damage these rules more than hinder them.

Tighter control of information coming out of the Bush Administration?

My first reaction to that is 'so what?' the type of information we are getting out of this adminisration from 'sources' is not good information but propoganda that doesn't want a public face. It's Karl Rove playing DeepThroat and not Mark Felt.


However, I have to look at the point you raised more thoroughly. Now, if you are a pure partisan and want to see the Bush administration brought down, your point is one to think about. Could all of the future 'sources' of the Bush administration be intimidated in the future, so that we will never find anything out about this administration? (That may not be your question but is kind of implied.)

First, I dont' think Plame will eliminate prosecutorial judgement (as above) and the ground rules of reporters and sources. Secondly, I think the consequences of what this person (Rove?) did are so great in terms of exposing the mechanisms of this White House that its a price to pay. Furthermore, I think a dent in the armor is needed to show the public how this administration truly operates, after which sources will be more willing to talk and the weakened administration will not be able to cover up as much.
posted by brucec at 1:35 PM on July 7, 2005

"Congress shall make no law... abridging the freedom of speech or of the press..."

Freedom of the press does not give the press, however it is defined, the right to break the law. It does not provide journalists with a safe haven from civil and criminal prosecution, i.e. libel. Where journalists are protected is limited in scope and jurisdiction.

If Judith Miller feels morally compelled, she should continue to hold the line. That does not mean that a federal court should treat her any differently than a non-journalist found in contempt of court.

Even if she were protected in the federal jurisdiction as a journalist, I don't know that it would apply in this case. If it turns out she is protecting a criminal instead of a whistleblower, I don't believe she'd be exempt from the law just to aid the Executive branch in their vendetta against Joe Wilson. That seems like it would be an abuse of the freedom of the press.

If your concerned about a chilling effect, then you must recognize that the slippery slope slants both ways.

And, yes, going to jail on principle does make Judith Miller the moral equivalent of Rosa Parks

By your logic, Klu Klux Klan members who have committed or were accomplices to crimes being committed that were also willing to suffer the consequences of their actions, are the moral equivalent of Rosa Parks. If that doesn't make it perfectly clear that moral equivalency is a useless means of equating two different people in two different situations, I don't know what would.

(I'm not saying your logic isn't correct. However, I am saying that moral equivalency is rhetoric and not very useful.)

or a person outing the person who outed Plame

I think your assertion that we just don't know the facts is important. However, I have operated under the assumption that it is known that Judith Miller's source is not a whistleblower. I have no more access to the information than you do, though. At this moment, I am unable to find a source to back up my assumption.
posted by sequential at 1:42 PM on July 7, 2005

Wrong. Again, the principle here is not the journalist. It's not the source she spoke with. It's the Bill of Rights.

what does this have to do with the bill of rights?

no one's making any laws abridging the freedom of the press. she's been ordered by a court to divulge information. she's refusing to do so. she suffers the consequence.

the kidnapping analogy is valid, i think, or murder -- if a reporter had knowledge of someone's plans to murder someone else, which moral obligation carries more weight? reportorial obligations to the source, or the obligation to prevent murder where possible?

in this instance, we're talking about a potential treason charge, which is regarded by the law as more serious than even murder.

what if the leak involved an imminent terrorist attack? would you still be going on about the bill of rights?

look, judith miller can't be compelled to give up her source if she doesn't want to, no matter what the consequences. this is no crisis in journalism; it's happened time and time again. them's the rules -- you may on occasion have to go to jail if you defy court orders. but journalists know this going in.

i believe in shield laws, but there have to be exceptions to every rule. clearly, this type of vengeful leaking is not what shield laws were meant to protect, and judith miller and her source are abusing this notion.

on preview, sequential said it better.
posted by Hat Maui at 1:47 PM on July 7, 2005

I think others have said this as well but the press in this case was the tool by which a crime was committed. The person who leaked this information to the press by doing so broke the law. That is to say had they not leaked the information no law would have been broken.

In this particular case reporters such as Miller are not journalists but instead witnesses to a crime.

This is not a case where they obtained a confession or reported a crime already committed or some other scenario where shielding of the press may be warranted. This is more like a case where they witnessed a murder but refuse to divulge the identity of the killer because they were "an anonymous source".
posted by aaronscool at 1:51 PM on July 7, 2005

"Again, the principle here is not the journalist. It's not the source she spoke with. It's the Bill of Rights."

No. That's a very expansive reading of the 1st. If we were to accept such an expansive reading of it, there'd be a whole lot of speech that would be protected that is not and a journalist protecting their source would be far down the list because it's very indirectly related.

As someone says above, and I only implied, the problem with journalist shield laws, or any other very expansive protection, is that then the government is forced to decide who is and who isn't a journalist for the purposes of this law. Now, if you want to think about free speech concerns, then you have a paradox because the government refusing to certify someone as a journalist is an explicit restriction on the press and would be unconstitutional. If the government can decide who's a journalist and who's not, then we don't have freedom of the press anymore.

One possible solution would be for the government to rely on journalists to decide who is and isn't a journalist with something like professional accreditation, and apply the shield laws to accredited professionals. The problem with that is that as a practical matter it discourages more speech because it makes it harder for people to be "speakers". This is already happening with media consolidation; a professional accreditation officially recognized by the government and which has many practical consequences, particularly legal, would greatly accelerate the trend toward Big Media. The end result, then, is something that those who advocate a free press don't desire.

So, again, the best solution is the status quo which allows shield laws and, where they don't exist, court leeway for reporters to protect their sources, on an ad hoc basis. This will mean that sometimes the court won't recognize a priority of the reporter's need to shield their sources. Reporters may go to jail. This is a professional risk.

Those arguing that this is just a really different situation are being very narrow-minded. The truth is that for the principle of a reporter protecting their sources to be of any practical value, it must include protecting sources who are lawbreakers. This pits the press against law enforcement. That's okay.

If you're not familiar with Judith Miller, and don't know her journalistic history, you ought to familiarize yourself before commenting. She was a primary motivating force in the propoganda asserting that there were WMDs in Iraq, and this is significant because it has become obvious that she should have known better. She uncritically accepted the word of many very unreliable sources, including very shady people and defense department officials who themselves were creating propoganda.

On Preview: "In this particular case reporters such as Miller are not journalists but instead witnesses to a crime." There's a number of investigative journalism pieces where the reporter directly witnessed the commission of a number of crimes, sometimes serious. There's cases where law enforcement has gone after the journalist for doing so. This has been argued in courts. The outcome has been ambiguous. You cannot claim that this is legally unambiguous because it simply is not. You don't know what you're talking about.
posted by Ethereal Bligh at 2:08 PM on July 7, 2005

From a legal perspective, neither the judge nor prosecutor are being 'overzealous'. She witnessed a crime, and may be compelled to testify. If she does not, that may be laudable civil disobedience, but it is still a crime.

For what it is worth, I think that there should be federal confedentiality protection for journalists, and a tighter definition of journalists, just as with doctors and lawyers. However, that does not change the fact that such protections do not exist now on the federal level.
posted by BrotherCaine at 2:22 PM on July 7, 2005

Those arguing that this is just a really different situation are being very narrow-minded. The truth is that for the principle of a reporter protecting their sources to be of any practical value, it must include protecting sources who are lawbreakers. This pits the press against law enforcement. That's okay.

Yes. What you said. We should be veeeery cautious. People yelling "lock her up" could likely regret the rush to judgement.
posted by tkchrist at 2:25 PM on July 7, 2005

If you're not familiar with Judith... [regurgitating of most recent Miller story elided]

E_B and others critical of Miller's work would do well to actually look into her history, which includes some of the most interesting reporting to appear in the NYT Magazine in the last 8 years or so, including investigations into chemical weapons production in the former Soviet Union. It was this excellent reporting that lead the NYT to put her on the WMD story, where she was apparently hoodwinked by Chalabi and others.

Don't confuse correlation with causation, E_B, she was a well-respected reporter prior to the WMD debacle. Are you seriously attempting to make the NYT into a mouthpiece of the administration?
posted by mzurer at 2:37 PM on July 7, 2005

I'm not very upset that Judith Miller, of all reporters, got caught up in the administration's mess and will be serving time in prison. If there were laws protecting the public from reporting that was misleading or didn't service its interests, she'd have been in jail a long time ago. They didn't send Novak to jail, so the sending of his closest equivalent at the NYT is thrilling.
posted by VulcanMike at 2:43 PM on July 7, 2005

You cannot claim that this is legally unambiguous because it simply is not. You don't know what you're talking about

I did not state it was legally unambiguous. What I did state is that she is the witness to a crime. This is not a case in which she has indirect evidence, testimony or sources about a crime or criminal activity. She is an active participant in the crime and in witnessing the criminal act. Really now should journalists, or anyone else be protected in that case?

Even lawyers and doctors which have very clear shield laws aren't always protected in this case. Most certainly their professions ethics don't protect them either. (i.e. a Lawyer can get disbarred for this kind of behavior).
posted by aaronscool at 2:45 PM on July 7, 2005

a friend of mine used to read Miller's shameful coverage of the WMD issue and comment, "she should go to jail".
but she insists it was, like, a figure of speech. and I believe her.

anyway, the giant sucking sound you hear is a thousand prospective whistelblower running away from every journalist in sight, because they know they'll get burned now. Bush's and Cheney's and Rumsfeld's secret are safe now.

it's not surprising that right-winger bloggers are creaming all over their mom basement's floor over this thing. again, not that Miller doesn't deserve jail. they're only sending her there for the wrong reasons.

not to mention, the fact that Novak is all comfy at home, laughing his sore ass off, makes this fiasco the second-biggest American legal embarrassment evar, after Bush v Gore
posted by matteo at 4:00 PM on July 7, 2005

mzurer:

Wow, you are completely stupid. Haha.
posted by wakko at 5:07 PM on July 7, 2005

wakko:

?
posted by mzurer at 5:25 PM on July 7, 2005

i completely misconstrued your comment.

i am therefore completely stupid
posted by wakko at 5:56 PM on July 7, 2005

Oh I don't know, I very likely am completely stupid, I just wasn't sure what exactly tipped it this time...

/me raises glass
posted by mzurer at 6:15 PM on July 7, 2005

i'm no fan of judith fucking miller, but i say FREE judith fucking miller!
posted by brandz at 7:44 PM on July 7, 2005

I'll make you a deal:

Free Judith Miller.

Jail for Bush, Cheny, et. al., for surely THEY have withheld information from the public that they shouldn't, and they ain't journalists, they're public fucking servants with delusions of grandeur.

Should she be allowed to protect a criminal source? Probably not. It makes a problem when government can decide when a source is "criminal". The problem here is that we have to debate this at all, because we have a criminal government.
posted by Goofyy at 3:06 AM on July 8, 2005

things metafilter doesn't "do well":
politics (I disagree)
music
journalism
posted by mr.marx at 5:12 AM on July 8, 2005

The scope of the privilege varies among jurisdictions, but it is flatly wrong to say there is no such thing.

"Shield laws" for journalists are not the same as the privilege that doctors and lawyers possess. These only provide some protection from "unjustifiable" subpoenas, and journalists will normally be compelled to testify or provide information.

As taken from http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws

Although the privileges recognized by the federal and state courts and created by the state legislatures vary in detail, most generally provide that the privileged information cannot be obtained unless the party seeking the information can establish that:

The information is highly material and relevant to the case at issue.

A compelling need exists for the information.

The information cannot be obtained by other means.


These are basic requirements for subpoenas in most courts. As a result, there is not any privilege for journalists.

Finally, if a state creates a reporter shield laws, could it mean that the legislature has created a law affecting the freedom of the press?
posted by turner13 at 8:22 AM on July 8, 2005

Judith Miller: 3 Decades of Disinformation -- Nine years into her tenure at the New York Times, she participated in John Poindexter's disinformation campaign against Libya for the Reagan administration. As Bob Woodward later revealed in the Washington Post, Miller planted Poindexter's propaganda in her own writings: claiming that el-Khadaffi was being betrayed from within his own country, that he had sunk into depression, and that he had turned to drugs. Miller went on to claim Khadaffi had tried to have sex with her, but lost interest when she claimed Jewish heritage. ...And so now, with the First Amendment drama playing out, a quick review of the material that's been building up on this woman for the last two years on the blogsphere reveals a much longer but very consistent career. Judith Miller has been and probably still is an informal asset not of our government but of an American political faction. From North Africa to the Mesopotamian, she has provided copy to support imperial adventures. Perhaps she thinks her powerful patrons will protect her, perhaps she knows too much, or perhaps she's just too old to start over and simply needs to protect her accustomed sources. Her access to them is what's made an otherwise utterly undistinguished career. If it weren't for her usefulness as a propaganda outlet, over three decades, she'd have no content at all.

This is not a question of freedom of the press, unless by "freedom" you mean the "freedom" to pass on government propaganda, which is a very strange notion of "freedom" outside of, say, North Korea. ...
posted by amberglow at 1:54 PM on July 9, 2005

write to Judy in the hoosgow! ...Folks,
Judy Miller can send and receive an unlimited amount of mail. Mail may consist of letters only -- no food, packages, books, etc. (We are arranging for her to get The Times and other newspapers.) She will undoubtedly welcome your letters and expressions of support. ...
posted by amberglow at 10:01 PM on July 11, 2005