Everyone has at least one dog to kick in the endless Valerie Plame/Robert Novak/Joseph Wilson/Judith Miller/Matthew Cooper/Karl Rove saga, which is scheduled to end up with the New York Times reporter being sentenced this afternoon. So in the interest of giving my foot equal time, let me quickly emphasize that anyone who still takes Time magazine seriously as a journalistic or even functionally adult institution deserves far less than the establishmentarian swill they're already getting.
You'd think that a $42 billion company could at least rent a spine, or recognize that standing up to a power-drunk federal prosecutor is an excellent opportunity for self-branding, and for asserting the important principle that reporters value their promises of confidentiality above a runaway grand jury's right to zealously pervert a forgotten law. But instead, Time's agreement to hand over Cooper's notes proves only that the House of Luce will soil its Depends when the federal government says "Boo." Well, good riddance.
Now, what of the messy legal considerations? Waving aside this case's dense political stink-fog, there are, as I see it, three main legal issues raised and lessons to be learned from this embarrassing, Second World–style harassment of journalists.
1) Grand Juries have run totally amok. When journalists are threatened with jail, it's almost always at the hands of a federal prosecutor abusing the heavily abused grand jury process. Why? Because, as Timothy Lynch, Thomas Dillard, and Stephen Johnson argued in a must-read May 2003 Cato Institute paper, "the government has been using the fa硤e of the 'grand jury process' to subvert the Bill of Rights—especially the Fourth Amendment's ban on unreasonable seizures of private papers and the Fifth Amendment's ban on compulsory examination under oath."
Grand Juries—which, ironically enough, were enumerated in the Constitution as a check on federal prosecutorial power—have become legally sanctioned fishing expeditions, in which citizens (more than 99 percent of whom are not journalists) can have their property seized without Fourth Amendment demonstrations of probable cause, and be compelled to testify without a lawyer and without Fifth Amendment–derived Miranda rights. Reporters are now being treated like everyone else, which we can only hope will serve as a poignant reminder to the media that the government treats everybody else the way a cat treats a lizard.
Solution: As the Cato paper concludes, "Congress must not only stop expanding the powers of the federal grand jury, it must scale back the grand jury's existing powers so that the guarantees that are set forth in the Bill of Rights will be restored for this and future generations of Americans."
2) Even the most obscure and targeted federal speech restrictions can and will be perverted to harass people who speak freely for a living. As Reagan and Bush I Administration vet David Rivkin and First Amendment lawyer Bruce Sanford spelled out last December, this whole sideshow of a case is based on the 1982 Intelligence Identities Protection Act, which was passed after renegade CIA agent Philip Agee kept "outing" the agency's foreign operatives, and was used in only one successful prosecution in 23 years.
"[J]ailing journalists for refusing to divulge their sources to a grand jury which never really had a crime to investigate, [is] a situation that makes the prosecution of Martha Stewart for lying about a stock transaction which in itself was not illegal look positively benign by comparison," Sanford and Rivkin wrote. "We will have ended up with the precise situation the press feared when it fought against the Agee bill 20 years ago—reporters, not enemies of the CIA, facing prison—and yet another testament to the mess that happens when Congress tries to criminalize certain kinds of speech."
Solution: Repeal the law, and stop passing new ones (let alone new constitutional amendments) that restrict speech.
3) Federal prosecutors are leveraging anti-media sentiment to drastically ramp up the criminalization of journalism. Check out Plame-case prosecutor Patrick Fitzgerald's remarkably snarky statements about controversial New York Times reporter Judith Miller from his court filing yesterday:
Certainly one who can handle the desert in wartime, is far better equipped than the average person jailed in a federal facility. Forced vacation at a comfortable home is not a compelling form of coercion.
His sarcasm was only getting started:
Special Counsel appreciates that Miller is also someone who thinks deeply. She is an investigative journalist who has won a Pulitzer Prize and authored several books, including one titled God Has Ninety Nine Names that contains a chapter singularly insightful as to the history and orientation of Egyptian terrorist groups. Neither Special Counsel, nor this Court, should lightly conclude that Miller will spend months in jail without thinking more deeply about the issues discussed above and, in particular, thinking about whether the interests of journalism at large and, even more broadly, the proper conduct of government, are truly served by her continued refusals to obey this Court's order to testify in an investigation in which she is an eyewitness and her putative source has been identified and has waived confidentiality... Miller's views may change over time, especially if what is viewed as her "irresponsible martyrdom" obstructing an important grand jury investigation is seen to undercut, not enhance, the credibility of the press and, with it, any case to be made for a federal reporter's shield law.
I can think of few more convincing arguments for a federal shield law than watching this federal prosecutor all but giggle at the prospect of Miller picking up the soap.
Solution: Pass a federal shield law, but one that protects journalism, not journalists.
More than enough ink has been spilled, including by me, on the thorny legal and potentially constitutional issue of who is entitled to journalist-shield protection (which is currently on the books in 31 states and the District of Columbia). Do bloggers qualify? Will the government be put in the creepy position of credentialing reporters? The Plame case has given renewed push for a new federal shield law, giving significant though not absolute protection for journalists against being compelled to reveal their sources and notes.
As the bill percolates through committee, here's my solution to the central conundrum: Offer the protection to any citizen who is in the process of conducting journalism. Judith Miller and Matthew Cooper clearly identified themselves as working on articles they hoped would be published. That's journalism. Similarly, freelance writer Vanessa Leggett—who was shamefully jailed for 168 days a few years back for refusing to cough up notes on a Houston murder she was compiling for a book, after the Justice Department successfully argued she was not a "working journalist"—would have also qualified.
Non-"professional" bloggers, too, could qualify, in the extremely unlikely event that A) they were actually compiling original data worth subpoenaing, and B) they had identified themselves to interview subjects as working on something to be published. Making this determination would be far less complicated than the current federal shield bill's messy attempt to define a "covered person" by publication or outlet.
Therapists, lawyers, priests, and spouses all have at least some protection against having their confidential conversations made into fodder for rampaging prosecutors. If it were up to me, that shield would be extended to the full population, at least until the grand jury system was reigned back in.
But in the meantime, no matter how much we hate individual or institutional journalists, no matter which political party we shill for, expanding that protection to cover those who intend to commit acts of journalism is at least a pinkie in the door. It's a small gesture toward protecting what few constitutional checks we still have against the government's ability to demand anything out of anyone at any time. A federal shield thus construed would also make it easier for all of us to contribute to the free exchange of information.
A country that shrugs at the sight of reporters getting hauled off to jail—or of 87-year-olds being forcibly removed from their houses, or of senior-citizen cancer sufferers being prosecuted for growing their own medicine—is a country that looks less inhabitable by the day. Unless you take your comportment cues from Time.