Monday, October 18, 2004

WSJ Editorial to Pinch: Take it to the Supremes

Geoffrey R. Stone weighs in on the Plame/Novak/Miller/Fitzgerald saga today with a thoughtful and compelling piece. He argues:

The members of the administration who "outed" Valerie Plame (if indeed they did this) were not confidential sources. They were criminals whose very disclosure of the information was itself the criminal act. There is no First Amendment reason to protect or promote such communications. Even under the most expansive version of the confidential source privilege, such individuals are not entitled to protection because they are not blowing a whistle but directly and intentionally violating the law. If any member of the Bush administration told Judith Miller that Valerie Plame was a covert CIA operative, she should drop the claim that this unlawful act is protected by the First Amendment and, like any other citizen, report their criminal conduct.
Stone cites the 1972 Supreme Court decision Branzburg vs. Hayes, in which the Court held that:
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
The language is pretty clear. However, Stone does say:
I agree with the Times that the Supreme Court erred in Branzburg. For the government to intrude into the core process by which reporters gain information from confidential sources is sufficiently threatening to the integrity of the newsgathering process that some justification greater than a mere "legitimate" law enforcement interest should be required before insisting that a reporter reveal confidential sources.
Nevertheless, he correctly concludes that this "argument must be directed to the Supreme Court, not to a lower federal court judge," and further makes a good point when he says, "What the Times should be focusing on is not the questions to Ms. Miller, but the fact that the prosecutors have taken so long to complete this relatively straightforward investigation that somehow they won't get to the bottom of it until after the 2004 presidential election."


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