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.