Would you go to jail for your weblog?

Would you go to jail for your weblog?

: Let’s say you know something the government wants to know. Maybe you published it on your blog, maybe you didn’t. The government subpoenas you. They go after your personal records. They use lawyers to harass you and possibly bankrupt you. They threaten you with contempt if you don’t tell.

Would you go to jail for your weblog?

And if you feared you might go to jail, would you continue to go out of your way to ask tough questions, dig up sensitive information, publish controversial views, or challenge the government?

Or would you feel the chill and just give up and blog about your cat?

It’s not a hypothetical question. It’s very real. It’s happening to The New York Times’ Judith Miller right now. It could happen to you.

No matter what you think of journalists in general and The Times and Miller in particular — and no matter what your view is of the Valerie Plame story that brought them to this corner — you could find yourself in the same predicament as Miller. You, too, can be threatened with government subpoenas and contempt and jail for what you write and even what you don’t write.

For you, my fellow bloggers, are journalists, too. You uphold the public’s right to know and citizens’ right to challenge authority. What happens to Miller and other journalists happens to you and me. In fact, without big media companies and their influence, attorneys, and industry pressure behind you, the frightening truth is that you are more vulnerable than Miller.

___

On Sunday, New York Times publisher Arthur Sulzburger Jr. and chief executive Russell Lewis published an op-ed pleading for support for our First Amendment and explaining the Miller case:

… Because the government officials who revealed Valerie Plame’s status as a C.I.A. operative to the press might have committed a crime in doing so, the Justice Department opened a federal criminal investigation to find whoever was responsible….

On Aug. 12, Ms. Miller received a subpoena in which she was required to provide information about conversations she might have had with a government official in which the identity and C.I.A. connection of Mr. Wilson’s wife [Plame] might have been mentioned. She received this subpoena even though she had never published anything concerning Mr. Wilson or his wife. This is not the only recent case in which the government has subpoenaed information concerning Ms. Miller’s sources. On July 12, the same prosecutor sought to have Ms. Miller and another Times correspondent, Philip Shenon, identify another source….

So, unless an appeals court reverses last week’s contempt conviction, Judy Miller will soon be sent to prison. And, if the government succeeds in obtaining the phone records of Ms. Miller and Mr. Shenon, many of their sources – even those having nothing to do with these two government investigations – will become known….

The press simply cannot perform its intended role if its sources of information – particularly information about the government – are cut off. Yes, the press is far from perfect. We are human and make mistakes. But, the authors of our Constitution and its First Amendment understood all of that and for good reason prescribed that journalists should function as a “fourth estate.” As Justice Potter Stewart put it, the primary purpose of the constitutional guarantee of a free press was “to create a fourth institution outside the government as an additional check on the three official branches.”

___

So here’s the next question:

What would make you jeopardize your First Amendment rights as a citizen journalist?

I know there are many complicated facets to the Plame story (which I will also confess I have not followed in detail or covered at all). I know that Miller is due considerable criticism for her handling of Iraq stories and The Times is due considerable criticism for its handling of her. I know that many of you don’t like or trust or admire journalists or The Times or big media these days. But none of that is a reason to let the government jail and intimidate a citizen in a case such as this.

For if we allow it to happen to her, it could happen to any of us. This is about our First Amendment and our right as citizens to question and investigate and challenge government and to use this, our new printing press, to do it.

So The Times asks for our support to press Congress for stronger protection in the form of a federal shield law protecting journalists from revealing confidential sources. Without it, they say, “the public will be in the dark about the actions of its elected and appointed government officials. That is not what our nation’s founders had in mind.”

___

But The Times also needs to realize that it must support our First Amendment rights as well.

The Times and other big media need to recognize that you are a journalist, too, and what you create on your blog is journalism. The Times and big media need to promise to fight to include citizen journalists in the protections that professional journalists enjoy in our democracy. (I tried to make that an issue at the last Bloggercon and suggest we keep making it an issue.)

This opens up a broader discussion between big media and citizens.

First, in this case, there is a legitimate and necessary discussion to be had about protection of confidential sources. If a source lies, should you still protect that source? If a source violates the law (as is alleged in the Plame case), can and should you still protect that source? Where does your obligation to the truth and justice cross your obligation to your source? This is an important discussion — though it shouldn’t be occurring under threat of 18 months in prison.

Second, The Times and big media need to realize that this is an issue of transparency: They tell us to trust them about sources. Well, we didn’t trust Dan Rather’s sources recently and we were right. So news organizations should use anonymous sources only when absolutely necessary to deliver the truth that otherwise could not be delivered. And they had better be prepared to have their own credibility questioned whenever they are not fully open and honest with their readers about the sources of news. Welcome to the culture of transparency.

Third, we also need to remind journalists that the First Amendment isn’t just about The Times and newspapers and reporters. It’s about us, too. It’s about Howard Stern as well. It’s about protecting the speech of every citizen — not just the privileged in media — from government interference and chill and intimidation. I would like to see a few Times editorials and op-eds about the frightening performance of the FCC these days in defense of Stern and Fox and not just about the performance of one judge in defense of Judith Miller.

Finally, we have the opportunity to sit at the same table with The Times and teach them that citizens can be colleagues in the Fourth Estate.

___

So, you see, supporting The Times is not entirely altruistic. This is our chance to remind The Times that we are equal to them and deserve the same rights and protections and a voice.

But this is also our chance to see that this isn’t about “us” vs. “them.” It’s all about “us.”

We are all citizens excercising our rights under the First Amendment to protect and preserve our democracy.

___

This post comes as a result of a conversation I had with a friend and professional colleague at The Times, Martin Nisenholtz, who believes that bloggers should be concerned about this case and should be discussing it. I took that conversation as a challenge. This is my answer. I also suggested that The Times should begin a conversation with their fellow journalists out here in the public. Among those with whom Martin spoke, Dave Winer plans to blog on this in the a.m. It begins.

Over to you, fellow citizens, fellow journalists.

: UPDATE: Glenn Reynolds turns the question around.

  • xxxxx

    Isn’t payback a bitch.
    If the Times hadn’t given Plame’s husband Joe Wilson an op-ed column about African yellowcake in 2003 then none of this would have happened.

  • John Bragg

    I think that we’re pushing this in entirely the wrong direction.
    Why should journalists, MSM journalists or independent bloggers, be exempt from subpoenas?
    Susan McDougal went to jail for 18 months or so because she refused to give Ken Starr the information that he was legally entitled to–is that OK until she gets a blog, at which point it becomes not OK?
    Why not just abolish subpoenas altogether?

  • David

    Judith Miller’s problems with the government shouldn’t matter, because she should be out of work and unemployable. Her mindless beating upon the Bush administrations Iraqi war drums lies at the heart of our nations folly that cost more than a thousand American soldiers their lives.
    Quite frankly, I hate her as much as Republicans hate Jane Fonda. She deserves to see her career destroyed forever.

  • Mary Perkins

    Does my blog get to have a huge legal staff, national standing, and all kinds of political power?
    If so, the answer is HECK YES!
    I can’t understand why the NYT wants to out anyone connected with this story except their own people. What if their reporter fabricated some of the published “facts”?
    Bottom Line: If the Times can’t keep its reporter out of jail, then *IT* has a way bigger problem then we bloggers do.

  • http://transplantedtexan.blogspot.com Austin

    I think the main point here should be that no one, not even bloggers or formerly-high-and-mighty journalists, is above the law. The Rule Of Law is what makes our national system work. So let’s examine the Law.
    The question Jeff raises rightly turns to the First Amendment and its protection of the press, but the notion that ‘free speech’ equals ‘yelling fire in a crowded theater’ has already been set aside by the Supreme Court as false. Is this the same kind of situation with the press?
    Put it another way: let’s say this was about something more substantive (not to belittle the notion that intelligence leaked about Valerie Plame isn’t important – it is). Say a reporter heard from a confidential source that terrorists had moved a nuclear warhead into New York City, and may be planning to detonate it soon. Would the First Amendment apply to that reporter trying to protect his/her anonymous source? I think not.
    In some sense, while far less dangerous than a nuclear attack, leaking sensitive information on clandestine operatives to the press is (aside from being illegal) endangering the lives not only of the operatives themselves, but also of any citzenry they were working to protect. Assuming Valerie Plame was actually undercover (a difficult argument at best), then the leaker(s) must be brought to justice. If the best leads available are hidden behind the wall of a stretched-very-thin First Amendment, is the government justified in following the ‘calling fire’ precedent? Seems to me that it is.

  • http://sqrlblog.blogspot.com Ricky D

    We bloggers are journalists now? Someone tell my mass comm prof….
    As long as I would be entitled to the same protections she (potentially, at this point) would receive I’d be OK with protecting sources in this manner. But I’d much prefer a show of support from the Times or any big media folks for us before I went to war with them.
    It’s dang hard to me to envision rallying for a cause, even one that could potentially affect me, for folks that any other day of week basically bemoan and belittle my existence (perhaps too harsh of language, but that’s how I see it, hear it, and read it).
    A small show of contrition could do a lot in urging me to put up 100 words about the subject. And on the other hand, I guess a good blog-wide mobilization to this cause might demonstrate firsthand to the Times et al exactly how big and important little media is. Tough call.
    If the plan is to play to the altruism of bloggers, there might not be much hope for that.

  • Tim

    Jeff,
    How many times have journalists agitated for the criminal prosecution of “us” civilians and/or tried “us” civilians in the court of public opinion using anonymous sources?
    Richard Jewell? Wen Ho Lee? How many are missing from that list?

  • http://randomnumbers.blog-city.com Random Numbers

    This is not a whistleblower case, this is a case of someone comitting a crime by leaking classified info to the press.
    Miller is not protecting a source who blew the whistle on wrongdoing, she is covering up for a crime.
    Spilling secrets get real-live people killed. I have no sympathy. Freedom of Speech or Freedom of the press does not translate into Freedom of Helping a Criminal Cover Up His Crime.

  • Tim

    Random Numbers,
    A crime was committed? Really? Can you link to your source please? Does Fitzgerald know yet?
    Daniel Ellsberg (Pentagon Papers)
    Anthony J. Russo (Pentagon Papers)
    Richard Nuccio (Julio Roberto Alpirez)
    Robert G. Toricelli (Julio Roberto Alpirez)
    Orrin Hatch (OBL intercept)
    Iraq War Plan

  • HA

    Jeff,
    This has nothing whatsoever to do with the First Amendment. If any other citizen had knowledge of a crime, he would be compelled to testify. The same laws should apply to journalists.
    What is really happening is the NY Times is abusing the First Amendment. They are trying to use it so that they are not subject to the same laws as everybody else. If the rule of law doesn’t apply everybody equally, we don’t have the rule of law.
    I’m sorry, the NY Times and their reporters are not above the law just because they are a media organization. The media has become far too powerful in this country because they have no accountability at all. The CBS memo scandal is just one example of this.
    It is time to start holding the media accountable by subjecting them to the same laws that everybody else is subject to. I say, hold Judith Miller in contempt and throw here in jail if she continues to defy the rule of law.

  • HA

    Jeff,
    One more thing. If YOU ever have knowledge of a crime, your first DUTY as a citizen is not to put it on your blog. Your first duty is to report it to the appropriate authorities. Period.

  • http://www.buzzmachine.com Jeff Jarvis

    Carry this discussion to one obvious end and if you see no value in a shield law to protect journalists (defined broadly, mind you) from revealing confidential sources, then you will never find out anything in government that is not revealed officially.

  • http://inspiredkazoo.blogspot.com Brett

    Jeff,
    I agree with you – we need Big Media’s connections to disclose crap in the government. If we’re not transparent about our sources, then people will either believe us or they won’t, according to our credibility.
    That said, I think the days of the public trust in Big Media’s confidential and hidden sources are beginning to be over.
    Like you, I’m concerned about free speech and the desire of some to muzzle those publishing on the internet. But it’s Walter Cronkite and Hillary Clinton who have suggested muzzling internet publishers. And Walter seems to think bloggers ought to be sued for some of our comments. (His thoughts expressed in his last column…)
    “Congress shall make no law… abridging the freedom of speech, or of the press.”
    But no one said anything suing our ass in court to stop us from speaking.
    You say: “So The Times asks for our support to press Congress for stronger protection in the form of a federal shield law protecting journalists from revealing confidential sources.”
    Too narrow, in my opinion. I think we need tort reform to protect free speech. Otherwise the courts will be our muzzle.

  • praktike

    Unfortunately, nobody is going to stand up and defend Judy Miller.

  • ZF

    Dream on, about the prospects of the media supporting an extension of the special rights they enjoy to ordinary citizens in the form of bloggers.
    In journalists’ minds ‘freedom of the press’ is a medieval guild preference which accrues to them alone. It may have been Lileks the other day who said that the only way to really outrage someone from the UN is to tow his car. Journalists’ belief that they stand above the rest of us ‘mere citizens’ is their core commitment and they aren’t going to be giving it up anytime soon, even if to do so would extent their own protections.
    There is a certain nobility in what you are calling for, but it’s not going to generate any response. Miller’s career is just too ghastly to be held out as an example.

  • http://acrosstheatlantic.com shell

    I’m unclear as to how her free speech was threatened. She had the right to say whatever she wanted. The courts have the right to subpoena her to learn more about a possible crime. They didn’t issue a gag order, did they?

  • Walter E. Wallis

    Freedom of press is a subset of freedom of speech just as a well regulated militia is a subset of the right to keep and bear arms. A pity they don’t teach english any more.

  • Matthew Goggins

    I have mixed feelings about this.
    Austin and Jeff have done a good job of outlining the opposing principles at work.
    Sometimes there are cases that just sit right on or near the fence, and you just have to hope the people involved act responsibly and use good judgement.
    I happen to know someone who is quite central to this story, and I respect that person’s judgement, so I’m not very worried about this particular conflict.

  • RobertL

    Check BeldarBlog, Oct 9, for a crisp review of this issue. BTW, he goes into some detail about the crime that was committed.

  • Don Mynack

    This is not a First Amendment issue in any way, shape or form, other than the Times trying to make it one. Miller has a legal duty to testify, and the judge has to power to make that happen with the contempt charge. However, she has no legal duty to incriminate herself – she can simply invoke the fifth amendment on the stand for self protection. Miller owes it to herself to get her own attorney, who is looking out for her interests, and not the interests of the NYT. She is being sold down the river here and should go kicking and screaming.

  • http://libertycorner.blogspot.com Tom

    There’s no freedom of speech or freedom of the press issue here. What’s at stake is due process of law, and that’s what Miller and her ilk are trying to subvert.

  • a reader

    Jeff, how is “a journalist” different from any other person? Suppose I talk on the telephone a lot — does that give me magic privileges to ignore my responsibility to my community?
    Now, you could argue about the ethics of using government force to compell people to say things they don’t want to say, but dictating a magic special class of “journalists” or “webloggers” doesn’t seem sensible at all.

  • Andy Freeman

    Why should my barrel of ink be treated differently than the NYT’s barrel of ink?
    It’s an easy question.

  • Lee

    It’s amazing how many misstateemnts of fact about this case appear above.
    Two questions:
    One: Why would Judith Miller, who did not print this story, be threatend with jail; but Robert Novak, who printed it, not be? First answer: Either Novak flipped or only some journalists are targeted in this investigation.
    Two: Why can the government use an indepenent media to “get to the truth,” when any law-breaking was accomplished by members of the government?
    Conclusion: The Plame case is serious, because it touches on gov’t wrong-doing, First Ammendement matters, and the social question of the role of the Fourth Estate.
    Someone or ones probably in the APPOINTED administration threatend Plame and ALL WHO WORKED WITH HER, by revealing her as a NOC. One member of the media assisted these people in accomplishing that black art; others did not report that some one possibly threatened an intelligence operation as presumable payback for tellign the truth that Hussein didn’t try to buy yellowcake in Niger.
    I have little sympathy for members of the media who serve as shills for ANY adminsitration or politician or party or any entity, but I am more worried about the idea that ANY aspect of government can go after media as though it was the media here who may have committed a crime.

  • HA

    Jeff,
    Carry this discussion to one obvious end and if you see no value in a shield law to protect journalists (defined broadly, mind you) from revealing confidential sources, then you will never find out anything in government that is not revealed officially.
    Not at all. If a source has committed a crime, then the journalist has no grounds for immunity from disclosing the source. If a source has NOT committed a crime, then the journalist enjoys First Amdendment protection. These are the same rules that apply to all citizens. I repeat, journalists are NOT above the law.
    And there is no need to carry your argument to a logical extreme because we have already been there for a long time. The result is that we have an unaccountable media that prints anything it wants regardless of the facts. They routinely present unsubstantiated rumor and innuendo from anonymous sources who have an agenda. Joe Wilson is a prime example. IIRC, his lies first surfaced as an anonymously sourced story by Nick Kristoff. Wilson eventually went public and has been thoroughly discredited.
    As one who is contstantly decrying the level of public discourse, you should recognize that THE MAJOR contributing factor to the decline of discourse in this country has been abuse of anonymous sources by an unaccountable media.

  • Soybomb

    Does a journalist have the right to be above the law? A US journalist is nothing more than a citizen of the United States. I do not believe that being a “journalist” gives you any special protections above and beyond that of a mere moral citizen. If you have information that is vital to the investigation of a crime, you have to be held at the same level judicial disclosure of that of a non-journalist.
    It is this elitist notion that MSM Journalists are above the law that has made them appear out of touch with the American People. If the press were truly interested in getting to the bottom of who leaked Plame’s identity, journalists would be egging Miller on to testify. Journalism is not about hiding information from public it is about revealing it. I believe in sunshine not the darkness of journalistic navel gazing.

  • http://andreasthepimp.blogspot.com/ Ira

    Jeff,
    perhaps you heard Elegant Elliot on the Stern show one morning a few years ago: someone who’d written an article about Elliot called in and they got into an argument – Elliot ended up bellowing that the writer was going to have his jounalist’s license taken away – and was quite surprised that you don’t need a license to be a journalist (also cf Cox & Forkum’s item on the Georgia State artist’s license last April 1…)

  • David

    Every “privilege” has a purpose. The purpose of the anonymous source “shield” privilege is to reassure LITTLE people that they won’t be destroyed by the retribution of a BIG person should they dare to tattle-tell on him.
    Now we’re arguing about whether or not Judith Miller should use this privilege to shield the identity of a BIG person who destroyed a LITTLE person in retribution for tattle-telling. Ridiculous.

  • Oscar

    Jeff – What a load of cr*p!! When will you professional journalists give the “public’s right to know” a rest??
    What about the public’s right to know who the h*** outed Plame, huh??
    No this is about the media’s right to make money.

  • http://www.hellinahandbasket.net James R. Rummel

    Sorry to say this, Jeff, but you’re wrong.
    The 1st Amendment clarifies the most important right that we have, but this isn’t about standing firm behind both principle and the Constitution. It’s about whether or not the press can claim that they’re entitled to aid and abet.
    The main reason the 1st Amendment is so important is that it keeps people honest. The basic idea is that, no matter how well connected or rich or powerful an individual or institution happens to be, they can still be brought low by an informed and participating electorate. In other words, if they’re gonna try to screw around then the press will make sure that they don’t get away with it.
    The problem here is that there’s every indication that the press was trying to help someone get away with it, and they did it for personal gain. (Not only would they get a juicy story that would sell newspapers, but they would also manage to embarrass a Republican administration.) This, most probably, wasn’t done deliberately by the NYT or Miller. But by trying to hide behind the 1st, they’re proving that they’re uninterested in following the very ideals that they claim to hold so dear.
    Reading the comments left here I’d have to say that this seems to be the common opinion shared by your readers. (Those that aren’t blinded by their hatred for Bush, that is.)
    James

  • Lee

    James, excellent analaysis, except for the part about the purpose of the Plame Noc “outing.” Since Robert Novak is a conservative, what interest had he in “emabarassing a Republican administration”? Novak doesn’t always agree with the Pres. But it isn’t as simple as “embarassing a Republican adminsitration.”

  • http://www.livejournal.com/users/selenite/ Karl Gallagher

    Taking away the shield laws won’t change a thing. Leaks are a weapon of bureaucratic in-fighting, no outpourings of idealism. If you want to protect the flow of information argue for laws protecting whistle-blowers, not journalists. There’s already precedent for that.
    As for Miller, if the judge says “talk”, you talk or go to jail. There’s no reason journalists should be exempt and the 1st amendment just guarantees you can talk and write about the experience afterwards.

  • http://youngcurmudgeon.typepad.com Eric Deamer

    Carry this discussion to one obvious end and if you see no value in a shield law to protect journalists (defined broadly, mind you) from revealing confidential sources, then you will never find out anything in government that is not revealed officially.
    That’s the theory anyway. That’s the justification for the completely extra-legal non-constitutional idea that journalists (or bloggers or whoever) should be able to protect their sources even if it means covering up for a crime or committing a crime themselves (being in contempt of court). This really has nothing to do with the First Amendment and is not dealt with in any law anywhere that I’ve heard of, hence the NYT’s special pleading here.
    But in practice I’ve never actually seen anonymous leaks used that way. Instead of bringing important information to the public, leaks are used as a way for opposed factions within an institution to make their petty fights public. Often, the information in the leak is going to be made official the next day, but someone leaks it anonymously early just to make someone else look bad. CIA and State leak anonymously (or comment anonymously) to make the Department of Defense look bad or vice versa. Again, often with stuff that will soon become part of the public record in some other way.
    I can’t remember an anonymous source ever actually providing legitimate information that helped the public understand anything. Anonymous sources usually offer opinion/speculation, (“Things are going terribly in Iraq. I think we’re planning on cutting and running.”) colored by their own agenda, an agenda which we can’t analyze because they’re anonymous.

  • Andy Freeman

    > Carry this discussion to one obvious end and if you see no value in a shield law to protect journalists (defined broadly, mind you) from revealing confidential sources, then you will never find out anything in government that is not revealed officially.
    That’s clearly false in at least a couple of ways. (Someone pointed out that whistle-blower protection can accomplish the same end. We’ve also seen stuff get out without any legal protection at either end.)
    Jarvis should study this “journalism” stuff. It might help him avoid sillyness such as the above.

  • http://www.deanesmay.com Dean Esmay

    I am honestly not able to decide what I think of it. Which is pretty funny since I normally have little trouble forming an opinion on these matters.

  • http://infidelcowboy.com infidel cowboy

    She doesn’t deserver any special protection beyond that conferred on any other citizen. The law is quite clear that she is not entitled to protect her source when there is criminal wrongdoing. She may have bigger problems anyway – isn’t she one of the NT Times reporters being investigated for tipping off some terrorist funding agency that they were about to be raided? Sorry – no sympathy from me. Sources who lie or break the law don’t deserve protection. Whistleblower laws protect sources who deserver it.

  • Charles R. Williams

    Journalists are not above the law. The government wants some information a journalist may have. The question is “do they have a right to it?” The courts will decide this. The NYT has plenty of money for lawyers. I know of no special privileges that a journalist has in this area. Freedom of the press does not equate to the immunity of journalists from the laws the rest of us must obey.

  • Andy Freeman

    > The Times and other big media need to recognize that you are a journalist, too, and what you create on your blog is journalism. The Times and big media need to promise to fight to include citizen journalists in the protections that professional journalists enjoy in our democracy.
    Does this include political speech? Has Jarvis broken from the herd and decided that political speech by the rabble deserves the same protection as boobie speech by MSM?
    MSM must do more than promise, they need to actually start campaigning against restrictions on our political speech, just as they’ve been campaigning for such restrictions.
    And, no, it isn’t a package deal. AFTER you’ve leveled the playing field we’ll talk about where that level should be.

  • Zev Sero

    Let’s think this through: suppose that Miller outs her source, and as a result that person is convicted of a crime and goes to jail. The next time someone thinks of outing a secret agent, they might have second thoughts, and be deterred from doing so. And? Isn’t that exactly what we want to happen?

    OK, suppose that (as I’ve believed since near the beginning of this story), the truth is that Plame’s status at the Agency was such a well-kept secret that the leaker didn’t know it was meant to be a secret, and therefore no crime was committed, and the leaker doesn’t go to jail. Still, it seems that this person’s carelessness did harm the national interest. The next time someone thinks of outing an Agency employee, the chilling effect of the Miller case, and the hassle that the leaker went through before being finally acquitted, will make this person think twice, and make sure that what they’re about to say isn’t meant to be a secret; if they think it might be a secret, they’ll be inclined to keep it that way. Once again, isn’t that exactly what we want to happen?

    The public’s ‘right to know’ isn’t an issue here; the public has no right to know the identities of CIA agents. Loose lips sink ships, and people should be careful about what they say. Miller isn’t protecting a whistleblower, i.e. someone who knew about wrongdoing by others and exposed it; instead she’s protecting the whistleblowee, so to speak, i.e. the person who – it is alleged – may have done wrong. If whistleblowing is a social good that ought to be encouraged, then Miller ought to be encouraged to blow the whistle on this leaker.

  • Inspector Callahan

    It sounds to me like our host thinks that journalists (or bloggers, or both) SHOULD be exempt from the laws that force the rest of us to report a crime or face penalty of jail. But he never actually states that.
    Jeff – just say so if that’s what you believe.
    Pinch Sulzberger said so – and quotes Justice Potter as his proof that that’s the way it should be.
    Me, I can’t stand for this. Judith Miller helped cover up a crime, and she should be held accountable for it. Like any of the rest of us should.
    TV (Harry)

  • http://www.bopnews.com Matt Stoller

    This isn’t about the first amendment, it’s about proportionally compared bouts of criminality. What Miller did isn’t illegal, but she has consistently abused her position as a powerful journalist to write untruths, frauds that led this country into war. That’s a structural breakdown, in some sense, and it matters that the legal structure and social structure aren’t holding those accountable who went along with and amplified the massive fraud of Iraq. Then you’ve got this issue, which is a different part of the government trying to attack this fraud, but finding that a certain practice of journalism is getting in the way of figuring out how the fraud happened. I’m torn here, because I can see both sides, but until you have some remedy for the massively fraudulent way this government went to war, you are only solving half the problem by preening about free speech.

  • David

    Here’s a letter to the editor I submitted, which wasn’t published.
    Re: “The Promise of the First Amendment” by Arthur Ochs Sulzberger and Russell T. Lewis (op-ed, 10/10) I’d be more inclined to support the Times’s First Amendment rights if they had supported mine. Unfortunately, this newspaper undermined the First Amendment by encouraging the passage of the Campaign Finance Reform Act of 2002. That law forbade groups ordinary citizens’ from running certain political advertisements. It established a government body to rule on the permissibility of such political ads, i.e., to censor them. The Times should defend everyone’s freedom of speech, not just the media’s.

  • http://aebrain.blogspot.com Alan E Brain

    From an Australian viewpoint, here’s some perspective.
    Judith Miller is not going to prison for her blog.
    Shahram Rafizadeh, Babak Ghafouri-Azar, Rouzbeh Amir-Ebrahimi, Hanif Mazroui, Omid Memarian and Mostafa Derayati are.
    Source : BBC

  • Kevin R.C. “Hognose” O’Brien

    I have a somewhat different point of view, which makes it hard to be objective. As a soldier I have felt the sting of the hatred and contempt of Miller, Sulzberger, and the whole Times gang. The media, by which I mean the mainstream, mostly bicoastal, big-city media, loathe the military. And in the ranks, that’s reciprocated. The troops know when the Times or the Post has fabricated a story. They have learned (or they do learn) that pointing out a blatant fiction to the Public Editor or Ombudsman respectively will not produce a correction, it produces a global defensive responce. You have to reach the conclusion that Jayson Blair, Mike Barnicle, Janet Cooke, Jack Kelley (sp?), Patricia Smith, etc., etc., are not exceptions: they are the standard at the Times, Globe, Post, and Gannett, and Globe again; they just got caught.
    So there is quite a bit of schadenfreude in watching the discomfiture of Miller. In some ways she is bearing this for herself, in some ways she is taking one for the team, as it were.
    Someone asked why Miller is threatened with jail, and Novak, who published the information, was not. He must not have been following the case: the essential difference is that Novak allowed himself to be questioned, whereas Miller, who apparently believes the rule of law is for the “little people,” told the judge to go pound sand. Judges, in their own way, are every bit as arrogant as Times reporters but have powers that, thank God, are not yet directly in the hands of their Fourth Estate counterparts.
    Bottom line: reporters are citizens with the rights and duties of citizens. Their self-image as an immune class of nobility not only is not supported by the Constitution, it’s directly contradicted therein. It will draw little support or sympathy from the other professional castes in society (such as mine), and less from the average citizen (who can also detect the contemptuous nasal elevation used by the Times while addressing him).

  • http://submandave.blogspot.com submandave

    Like others, I see a stark difference between trying to force anyone to reveal private conversations (e.g. interviews with a source) and compelling testimony (by subpoena) on criminal activity. If person X told Ms. Miller that person Y “outed” Ms. Plame, then questions about the identity of person Y (even as hearsay) are clearly relevent, but may the identity of person X be compelled? One may view it as a means to identify a relevent witness, but is the subpoena a valid investigatory tool? While I’m not a lawyer, I tend to think not, as its potential to be used in a “fishing expedition” sort of way would be too great.
    In this case, though, it is not “X said Y did it” but direct knowledge of the identity of Y, which clearly makes compelling testimony by subpoena more relevent.

  • Tim
  • thebronze

    1st Amendment rights?
    Where was the NYT when the Swifty’s were trying to get out their message?
    Where is the NYT now that Sinclair is airing “Stolen Honor”?
    When the NYT whines about the 1st Amendment, they’re only talking about their 1st Amendemnet rights to lie and deceive.
    Hypocrites.
    The NYT and the rest of the main-stream media can go to hell.

  • Andy Freeman

    > The Times, Martin Nisenholtz, who believes that bloggers should be concerned about this case and should be discussing it.
    Perhaps Nisenholtz should discuss how is the NYT’s barrel of ink different from mine. Here’s an easy warm-up – should Stern’s boobie talk be more protected than my political speech?
    When the NYT undoes its work against my free speech, when we’ve got a level playing field, we can talk about what that level should be.

  • http://www.bopnews.com Matt Stoller

    Why doesn’t Martin Nisenholtz start a blog, if he thinks this is worth discussing?

  • JorgXMcKie

    I didn’t have time to read all the comments, as I usually would before posting, so maybe this is not new, but I, for one, would appreciate having _my_ First Amendment rights and those of my students given the same consideration the Times wants for Miller. I am sick unto death of the PC double-standard, hate-speech or whatever restriction on the speech of ordinary citizens. Where has the NYT been for the last 20+ years as political correctness has trampled the First Amendment freedom of speech rights of the citizenry? I can tell you. They’ve been helping the censors. Great to find out that the shoe pinches on both sides, idiots.
    Let the NYT do a mea culps (a sincere one, hah!) and I’ll lend a hand to their effort. Otherwise, they’re just another elite claimning special privileges that they don’t want to allow the rest of us.

  • http://blogs.oc.edu/dan.lovejoy Dan Lovejoy

    Meh. Let ‘em twist in the wind. We can defend the 1st Amendment without sticking up for that rag.

  • doro

    Ah yes, the public’s right to know. The public has a right to know any information anyone has that could lead to a crime being solved and criminals brought to justice. If journalists, or anyone else, can ignore subpoenas, the public right to information about a crime, is denied.

  • http://richards1052.typepad.com/tikun_olam/ Richard Silverstein

    This is a terribly fraught & complicated question. But I don’t come down anywhere nearly as sympathetically to Miller or the Times as you do.
    I understand the critical nature of the journalist/source relationship & why it’s so important to the vitality of our democracy.
    But this HAS to be balanced against the horrible manipulation of journalists by the Bush Administration in this case which caused the revelation of the identity of a U.S. government agent. Judith Miller allowed herself to be manipulated by the government in accepting its claims of WMD lock, stock & barrel. WHile thankfully she did not publish a story revealing Plame’s identity, she contemplated doing so. I find myself DEEPLY troubled by her judgment in this matter. Why would she & her editors even consdier running such an article??
    Of course, I’m far angrier at Novak in this matter because he actually did reveal Plame’s identity. I’d far rather that he went to prison than that she did.
    In addition, Libby has waived his right to confidentiality & this should enable her to testify in good conscience as it has other jouranlists who’ve testitied on the strength of Libby’s waiver.

  • http://blogs.oc.edu/dan.lovejoy Dan

    Notwithstanding its dismal record of disrespecting other content streams, the NYT can’t step on anyone’s First Amendment rights. Only the government can do that.
    Let’s not conflate the two. Free speech is a broader concept than constitutionally protected (1st Amendment) speech.

  • Andy Freeman

    > Notwithstanding its dismal record of disrespecting other content streams, the NYT can’t step on anyone’s First Amendment rights. Only the government can do that.
    Note that the NYT has been pushing such laws, as long as there’s an exemption for MSM.
    > Let’s not conflate the two. Free speech is a broader concept than constitutionally protected (1st Amendment) speech.
    Oh goodie. Someone is going to explain why Stern’s boobie speech is 1st amendment protected, why pornography is 1st amendment protected, why the NYT’s political speech is 1st amendment protected, but my political speech is not.
    As I’ve asked before, how is the NYT’s barrel of ink different from mine?
    On a more practical note, given MSM’s record wrt my speech, why should I care about MSM’s speech? (No, I don’t think that they’re being stopped from doing anything particularly valuable. Disagree? Provide actual examples.)

  • http://richards1052.typepad.com/tikun_olam/ Richard Silverstein

    Since Jeff & Martin Nisenholtz have called for a broader debate in the blogworld about the Miller-Plame affair, I thought I’d add my 2 cents. My post is at Does Judith Miller Deserve Our Support? . I wish Jeff had a trackback option here so I could trackback to his post. BUt I’ll have to satisfy myself with linking to it in my own.

  • Beau

    OK, folks, let’s carry this through to another logical conclusion –
    Let’s say I’m out on the bike trail one day, and I hear a couple of people talking about, say, troop positions in Iraq. I don’t run home and publish it on a blog, I don’t write a story for a newspaper, I don’t do anything. But if the government wants to do so, they can come after me and tell me to describe everything in detail, or they’ll toss me in jail.
    Fair? Most of the privacy hounds you meet on the Net would say no.
    Now here’s a revelation: I’m technically a journalist, even though I’m never going back to the News department. NOW would you toss me in jail?
    I don’t know – I’m not really absolutist about such things. I’d go to the mat to protect an anonymous whistleblower who told me her company was endangering the public. I’d be less inclined to do so just because someone who might be helpful to me later blabbed about something illegal that could, well, endanger the public.
    I don’t think Miller necessarily did anything wrong, but I don’t think her source is worth protecting.
    But frankly, I wasn’t worried about the state of civilization until I read this comments thread. Some of you … well, you’ve got issues. Most journalists are honest people — they’re all human and will make mistakes. Come on, folks — you can be good watchdogs without being so cynical and nasty that you assume the whole system’s corrupted. That way of thinking serves no one, and that’s frankly one reason why I don’t take blogs that seriously.