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| July 6, 2005

Like her own personal Erin Brockovitch, Matt Welch comes to the rescue of the beleaguered Judith Miller.

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|7.6.05 @ 5:39PM|

I dont understand this situation at all. Someone please correct me if im wrong but I dont recall Miller ever writing anything about Plame. Novac outed her, and seems to not have anything to do with this investigation. How hard is it to get Novac to disclose the source, if he doesnt, throw HIS ass in jail.

Guess she voted for the wrong guy.

gaius marius|7.6.05 @ 5:53PM|

at the end of the day, mr welch, speech must be criminalized by this society.

things were different in the age of objectivity, when things mattered and ideas, even seemingly good ones, were viewed skeptically. but the advance of idealism in a decaying west has put the new and innovative at the forefront of every mind, utterly discrediting accumulated experience as just so much old stuff, irrelevant to any "forward thinker".

materiality was the widely recognized gateway to power in those times; the likelihood of anyone riding to dangerous authority on a mere idea was laughable.

well, the mass politics of democratic idealism has changed all that -- and ever since it was first realized by the fascists of the early 20th c that ideas could easily mobilize vast armies backed by vox populi, free speech -- and the potential debate of ideas on their merits or, worse, the audience for a better idea -- has been an anachronism waiting to die throughout the west.

|7.6.05 @ 5:54PM|

I'm leery of the idea that "doing journalism" should entitle one to special legal privileges. And, frankly, if you go with that principle, you will have judges deciding who is and who isn't "doing journalism", which I suspect will turn out to look a lot like deciding who is and who isn't "a journalist".

|7.6.05 @ 5:55PM|

Can anybody tell me what the hell gm just said?

|7.6.05 @ 5:57PM|

things were different in the age of objectivity, when things mattered and ideas, even seemingly good ones, were viewed skeptically. [emphasis added]

Gaius, no offense, but things were also different in the Hyborian Age, which is about as real a time as that.

Julian Sanchez|7.6.05 @ 5:58PM|

He said free speech was fine and dandy for the 18th century, but people now are too crazy and fucked up to permit it.

Morat|7.6.05 @ 6:02PM|

Special prosecutors are empowered to investigate a crime and all crimes related to it -- in short, if you're told to investigate a murder and you found out that the murder actually was the culmination of a six-state robbery spree, you're supposed to prosecute the robberies too.

Since Fitzgerald -- unlike Starr -- doesn't actually LEAK his Grand Jury work, it's hard to tell what's going on. The CW on this is that Novak squealed like a pig (or invoked the 5th, if appropriate) and Fitzgerald is done with that.

However, the situation isn't as simple as you make it out to be -- for instance, say Rove told Novak. But Rove is unlikely to be cleared to know Plame's identity -- the CIA keeps means and methods close to the vest. Somewhere in the chain someone who was cleared to know about Plame told someone who didn't -- ultimately it got out to the media.

Fitzgerald's job is to find out which guy blabbed. For all we know, that guy might have blabbed straight to Novak, or maybe he blabbed to Bolton who told Chalabi who shared it with Miller who then told Rove who then shopped it to the entire DC Press -- Fitzgerald has to dig back to the actual crime -- which may or may not be telling Novak.

Now, it's entirely possible -- lord knows it's happened before -- that a person or three lied to the Grand Jury about this whole affair, and Fitzgerald figured that out. He'll be adding perjury to his charges -- once again, perfectly within his mandate -- and might be chasing Miller or Cooper down to nail perjury or obstruction related to his case.

As for as journalistic shield laws go: Please -- absolute shields don't exist for anyone and should not exist for anyone. Under the right circumstances, a spouse can be compelled to testify against her husband, a lawyer to testify against his client, or a doctor against his patient. Journalists are no different.

In this case, we're all just mentally jacking off -- we don't know why Fitzgerald wants Cooper and Miller's testimony, or even if he wants them for the same reason. All we know is that he HAS convinced both the judge and the DC Circuit court that his reasons are compelling. In fact, as best I can tell (do correct me if I'm wrong) the standards the DC Court agreed on (Actually, I believe it was a split between "There is journalistic privilage, but it doesn't cover this" and "There isn't one, but if there was one, it wouldn't cover this" in the decision) are pretty much what the state shield laws are.

In short, if there WAS a journalistic shield at the Federal level, and it was modeled after the state ones, Miller and Cooper would still be right up the creek -- at least according to the DC Circuit judges.

I'm firmly of the opinion that there SHOULD be a federal shield law -- and I'm also firmly of the opinion that if there was one, any sanely written one wouldn't cover this case.

And I don't care WHAT political party the principles in this sad drama adhere to. It doesn't matter. Shield laws are there to protect whistleblowers -- those who leak information for the public good -- from official retribution. In this case, public officials are using them to exact retribution against whistleblowers they couldn't fire or blackball.

|7.6.05 @ 6:03PM|

He said free speech was fine and dandy for the 18th century

That sounds a bit recent for GM. I suspect he means closer to the 8th.

|7.6.05 @ 6:05PM|

Okay gaius, I could almost go along with you when you said that the decay of western civ was inevitable, almost how it's inevitable that we'll all grow old and die. But now you're saying that we must criminalise speech because of the decay of western civ? WTF?

As I mentioned to you before, gaius, whether our civilisation does fall or we destroy ourselves through our decadence, or free-thinking, I still think that's the only fair way to go. Man has to be free to either succeed or fail. Coersion has no place, if man is ever to truely succeed. For if man is not free to choose, then he remains bound by his shortcomings and weaknesses and can never overcome them...

gaius marius|7.6.05 @ 6:07PM|

people now are too crazy and fucked up to permit it.

exactly. there's been a sea change over the intervening centuries in how we see the world and our belief in how it should work. the currency of ideas is immensely strong now -- much stronger than it was in the 15th c. the cult of the new is completely ascendant.

in such an environment, does anyone imagine that the resident powers can tolerate the free exchange of ideas any more than the renaissance papacy could tolerate the free exchange of religion? did anyone see what the mass politics of ideas accomplished in the second world war? in the communist revolution? in the french revolution? of course free speech is going to be severely curbed.

gaius marius|7.6.05 @ 6:09PM|

now you're saying that we must criminalise speech because of the decay of western civ?

no -- i'm not taking a directive position at all. i'm simply saying that, given the current worldview of western man, it's almost inevitable.

|7.6.05 @ 6:09PM|

Of course, it is highly unlikely that a crime was committed when la Plame's identity was leaked, and even less likely that, if one was committed, an indictment or conviction can be obtained.

Personally, I think the whole thing has a lot to do with certain playas in DC taking an opportunity to put a bruise on the culture of leaking that thrives there, for better or worse.

As to the principles involved, a journalist has absolutely no legal grounds for refusing to testify to a grand jury. Hell, grand juries can force doctors and lawyers to testify about their clients, when you come down to it. I tend to be very wary of special privileges for special classes of people, so I see no reason to give journalists a get out of jail free card when any of the rest of us plebes would do the time.

|7.6.05 @ 6:09PM|

Actually, I think GM is saying that our society has evolved along a fucked-up direction that makes it necessary for it to criminalize speech in order to continue along that line. Restated, our crazy, relavistic society can't tolerate free speech.

I disagree, but that's how I read him.

|7.6.05 @ 6:11PM|

ah, i read him right -- this can only be a bad sign.

|7.6.05 @ 6:12PM|

I thought the whole point of a relativistic society was that it tolerates everything. With not absolute standards, what else can it do?

|7.6.05 @ 6:14PM|

I think the idea is that such a society can only react with hostility to claims of absolute standards.

gaius marius|7.6.05 @ 6:15PM|

Restated, our crazy, relavistic society can't tolerate free speech.

particularly, that many among the dominant few recognize how the flammability of ideas and speech has wildly expanded, not merely with technology but with our willingness as idealists to accept them uncritically, unevidenced and without the use of a moderating gatekeeper -- and how that presents a severe anarchic threat which, certainly in their view, must be met.

|7.6.05 @ 6:16PM|

See, if gaius made sense, we wouldn't spend half the thread trying to parse his meaning, rather than discussing Matt's excellent column.

gaius marius|7.6.05 @ 6:23PM|

Matt's excellent column

is, with all due respect to mr welch's considerable talent, just skylarking. no one in government is going to do anything like what mr welch called for because they see their interests and society's protected in doing just the opposite.

that's the point i'm trying to make. it would behoove libertarians, as aspirants to actual government someday, rather than hop up and down red-faced with every act of leadership, to try to understand what is driving society in this direction, to do these things -- and then understand and address those root causes of our social development, instead of complaining about the symptoms.

The Wine Commonsewer|7.6.05 @ 6:25PM|

Great piece Matt.

gaius marius|7.6.05 @ 6:27PM|

this can only be a bad sign.

it's not so bad, mr .5b. i'm sure there's a corrective drug therapy out there for you to indulge in. :)

|7.6.05 @ 6:30PM|

Deromanex? Capitalettera? ;)

|7.6.05 @ 6:34PM|

Gaius is right. Reminds me of something the chancellor observed in SW-Revenge of the Sith: those who have power seek only to keep it (I'm paraphrasing, of course).

MSM is somewhat controllable now. Soon, they'll come after comments posted on reason....

fyodor|7.6.05 @ 6:35PM|

I see no reason to give journalists a get out of jail free card when any of the rest of us plebes would do the time.

I'm still not sure where I stand on all of this, but hopefully, RC, you can see that one good reason to grant journalists special privileges in this regard is to incentivize (if I may take liberties with the language) investigative reporting.

Matt Welch|7.6.05 @ 6:35PM|

I'm leery of the idea that "doing journalism" should entitle one to special legal privileges. And, frankly, if you go with that principle, you will have judges deciding who is and who isn't "doing journalism", which I suspect will turn out to look a lot like deciding who is and who isn't "a journalist".

I disagree about the second half. The deal-breaker in figuring out who is or isn't a journalist is usually the quality of the publication/outlet, and whether it's "professional." These standards veer wildly depending on the judge (or journalist, for that matter).

On the contrary, if someone can demonstrate that they had let it be known they were gathering material/conducting interviews for the publication or broadcast of *something*, that's all you'd need. You'd find out by asking the interview subjects. Seems a clearer standard to me; the fudge factor would be when someone might say "oh, I'm a blogger, and I'm conducting research secretly for a project I might do..." And then the person would likely, and rightly, not qualify for the shield.

|7.6.05 @ 6:36PM|

What, did I just hear gaius mention something along the lines of solutions?? I'm agasp!

But still no meat to it. Just a vague illusion to such beasts.

Maybe this time you'd care to enlighten us?

Sorry, Matt, I just don't care too much about this whole thing. Sure, grand juries have been perverted, but in this instance I can't be too fired up.

Besides, I don't even know all the legal ins and outs.

gaius marius|7.6.05 @ 6:36PM|

why is it that your recommendation is more or less the recommendation everyone of some non-libertarian political stripe

because the flaw of libertarianism is so obvious, mr .5b, to everyone but the faithful. :)

and, believe me, i'm not questing -- even if i were seeking disciples or something, why would i fish in this hole? :) i'm simply trying to interject some dialogue into this board that isn't liberty ad nauseum, hoping to get some intellectual engagement out of it from the intelligent and sensible here. if someone comes to their senses as a result, i have not benefitted.

|7.6.05 @ 6:44PM|

why would i fish in this hole? :)

But you'll swim in it? ;)

|7.6.05 @ 6:46PM|

On the contrary, if someone can demonstrate that they had let it be known they were gathering material/conducting interviews for the publication or broadcast of *something*, that's all you'd need.

So if and only if someone announces beforehand that s/he's researching a story on the subject for some form of publication, that person could claim the journalistic shield? I don't think I understand.

gaius marius|7.6.05 @ 6:52PM|

Maybe this time you'd care to enlighten us?

hey, i'm not a mahatma. i don't have all the answers, mr lowdog. but there are real, identifiable social problems that people in leadership are trying to address -- and if the libertarian caling card is to ignore them or call for even more of the cause... well, it explains the LP's exodus in the political wilderness.

there's an appalling lack of moderation or restraint in american public life, thanks to the deaths of institutions and traditions which checked them, and people see social disintegration all around them. how do you think they should respond? by destroying what's left of the morals and laws?

to the contrary, the leadership is going to counter the growing chaos of ideal individual emancipation with authoritarianism. you see it already in their reaction to political terrorism and drugs. the threatening ideas of communism became the object of a religious crusade. why should future ideas and speech be an exception? on principle? and they've got justification, observing how the infection of a lawless idea so easily swept aside order in 18th c france, 19th-20th c russia, 20th c germany and italy -- you get my point.

fyodor|7.6.05 @ 6:53PM|

So if and only if someone announces beforehand that s/he's researching a story on the subject for some form of publication, that person could claim the journalistic shield? I don't think I understand.

Who would s/he announce it to?

gaius marius|7.6.05 @ 6:54PM|

But you'll swim in it? ;)

lol -- i wash at the end of the day. :)

Matt Welch|7.6.05 @ 6:55PM|

Eric -- Every time I do an interview with someone, I say, "Hi, I'd like to interview you for a story about X running in Y publication." Or, if I'm freelancing it, it would be "I don't know where this will run, but I'm planning on doing a story about X." The other scenario by which I'd get quotes would be public events, like conventions or panel discussions or conferences or concerts.

Combine those, and you've covered 90+ percent (maybe 99) of the scenarios under which journalism is conducted, at least the kind of journalism that has any chance in hell of resulting in being hauled in front of a judge. Which is to say, sitting in your underwear (as I am doing right now), and compiling links to already-published data, then formulating a response based on it, is probably never going to get you a subpoena. It's only the obtainment of original data, which is almost always done when the person you got it from is aware of your intention to use it publicly.

The only real hole I see in that is if someone out-and-out *steals* some piece of data, then tries to use the Shield Law to cover it. But shield laws as constituted already don't cover criminal activity, so I don't see the conflict.

|7.6.05 @ 6:56PM|

In other words, our crazy ideas of nigh-unfettered freedom (which almost no one else agrees with and has almost no political currency, but never mind) are causing and will cause so much chaos that our poor, benighted public servants will have to go the police state bondage-and-domination route to get us back under control.

|7.6.05 @ 7:04PM|

Eric -- Every time I do an interview with someone, I say, "Hi, I'd like to interview you for a story about X running in Y publication." Or, if I'm freelancing it, it would be "I don't know where this will run, but I'm planning on doing a story about X."

But if the guy you're interviewing is your confidential source, he certainly can't vouch for you, right? Or do you mean some other, non-confidential source you talked to for that story?

How specific would X need to be? "I'm doing a story on the state government", "on Governor Smith,", on "on something suspicious about Governor Smith's finances" or "on that thing with the guys under the overpass with the suitcase full of money"?

I ask because, if it has to be very specific, it sounds like you have to walk around making it terribly obvious to all and sundry what you're investigating, which sounds as it would make it hard to investigate.

|7.6.05 @ 7:09PM|

Matt, I like your idea of a new Shield Law, but one thing concerns me when it comes to protecting confidential sources: if the interviewee's testimony/confirmation is needed to determine whether the writer was engaged in journalism, would it work?

I've tried comparing it to doctor-patient privelege, but the comparison doesn't work because in that case, it is the content of communications/medical records, not the identity of the patient in itself which is priveleged.

Or...I've been drinking again. :)

|7.6.05 @ 7:11PM|

Or...Eric made the point better than I did...

|7.6.05 @ 7:12PM|

Eric the .5b,

Gaius Marius reminds me of Heidegger. Heidegger got knee-deep in with Nazism of course.

Matt Welch|7.6.05 @ 7:12PM|

Eric -- X doesn't have to be that specific. "I'm a reporter snooping around about a potential story," will work. The key would be to be able to demonstrate, one way or another, that you were compiling this information to be published in some way. This could be in the form of your outbound e-mails, for example.

And yes, that becomes tricky when we're only talking about one confidential source that the reporter won't give up. But even then, one has no doubt that, say, Judith Miller was conducting journalism (and sometimes "conducting journalism" can be bullshitting/getting drunk with a source).

Basically, the only major loophole in my scenario is if a person who normally does NOT publish or broadcast anything, then goes out and obtains subpoena-worthy information from a source he insists on being confidential. I'm going to go out on a limb here and say this is unlikely to come up very often.

|7.6.05 @ 7:12PM|

Which is to say, sitting in your underwear (as I am doing right now)

To cross the threads, GM should be bemoaning the fallen state of our "gatekeepers" right about now. ;)

|7.6.05 @ 7:15PM|

Eric the .5b,

Note the idea that there was some rampant emancipatory individualism prior to the collapse of the Russian Empire, Kingdom of France or the Weimar Republic is simply silly. For example, Russia was as oppressive as it had ever been in 1917; indeed more so in light of the war (WWI), the reactionary tendencies of the monarchy prior to the 1905 Revolution, etc. gaius marius doesn't know what he or she is writing about.

|7.6.05 @ 7:17PM|

Matt--my apologies for not adhering to my favorite principle "The perfect is the enemy of the good."

I'm sitting here picking your ideas to death because they're not THE SOLUTION. Sorry. What you propose would seem to be an improvement.

Matt Welch|7.6.05 @ 7:19PM|

No apologies necessary or even accepted. We're busy here trying to craft pie-in-the-sky law, and that's rigorous, peer-reviewed work, dammit!

|7.6.05 @ 7:29PM|

Matt - that mostly makes sense to me, but couldn't a prosecutor argue something like, "Your Honor, Mr. Welch mentioned to the receptionist of the state comptroller that he was 'researching a story' in April of last year, but he claims he first met his anonymous source, the only known witness to the crime in question, in August of last year. He could easily have been working on a different story entirely, so the state urges that he be compelled to testify on his source's identity."? (Or whatever correct legalese.)

Or are you saying that anyone who goes around saying "I'm researching a story" (in other words, pro journos, first-time authors, wannabe amateurs) should be able to invoke this shield, regardless of timing, context, etc?

Matt Welch|7.6.05 @ 8:10PM|

Eric -- The point of making it clear that you are researching something publishable is a way to include non-professional journalists under the shield. People paid to do journalism, like me, probably wouldn't have to resort to that defense, because by definition it's sort of assumed that we're out there doing some journalism, or even sponging up some "background" that will eventually inform a story or two.

So, in your scenario, my answer would be, "Dude, I do journalism for a living," which in *my* scenario would be enough 99 percent of the time to invoke the shield. Note, too, as others have here, that the shields are never 100% absolute.

The real loophole comes when people who do not publish/broadcast for a living, and who in fact do not publish/broadcast with any kind of frequency, obtain information from someone in such a way that no one besides the confidential source had any inkling that it would be published or broadcast. This *would* come up, just not very often.

|7.6.05 @ 8:18PM|

Great article Matt. I really enjoyed it.

Eric,
Would you consider creating a gaius to English translation service for babelfish?

|7.6.05 @ 10:46PM|

I know I'm too late, but I agreewith GM (vague as he may be). Here's my best libertarian agreement:

Time honored institurions that were essential to our survival are becoming extinct. As to wether this is caused by radical individualism isn't the culprit I see though. The best examples I see are the attempts to replace the family with the state. The government schools are expected to serve as a substitute for parents. Parents aren't complaining because they get the free time to work and the lack of responsability we miss having as children ourselves. But like always shit happens. But the nature of the machine causes the masses to look for institutional solutions in the same hamhanded government legislatures that faild the first time. This causes a ratchet effect that tightens down society into the police state, where government has evolved to be the sole institution to survive. I think Gius is recomending we alter a more subtle root trouble in the structure of the system rather than swiping (see bitching) at the heads of the hydra. What the fuck are these alleged roots? I don't know. But we need some sort of sweet chess move type answer that everyone sees as positive (i.e. will vote for) and benefits society by coming in handy to much further into the game.

|7.7.05 @ 1:50AM|

I'm weighing in late here, but I wanted to ask a question. I think my assumptions were wrong, which changes my view of things, but here is what I had thought until today:
Normal journalistic shield: "Someone at XYZ company told me the CEO is embezzling; I wrote an article about it. There was a crime committed, but I must protect my source, so I won't testify who told me just so a prosecutor can track down the embezzling crime." This make sense to me.
Plame case: "Someone in the government told me a secret; the act of telling me was a crime in and of itself, and as such I cannot expect the shield law to cover me."
This is not the case, correct? Or we have no idea?

I think if Miller is in situation B, I can more understand why she should have to talk. She was not just a journalist digging for a story; she was involved in a crime (again, if situation B holds).

Any thoughts?

Fun article Matt. I don't know how much of the treatment of Fitzgerald or Time is fair, but amazing writing as always.

|7.7.05 @ 2:17AM|

Excellent article, Matt. Hits close to home for reasons I can't get into.

I think it is worth noting that a citizen's prerogative to keep things secret is diminishing as gov't secrecy is expanding. It's a power thing I think.

|7.7.05 @ 5:27AM|

Matt, interesting article. But I walk away from it thinking "the real problem is those damned federal juries".

Hmmmm. Maybe, the whole problem is the lawyers to begin with. Lawyers split all definitions to shreds, and when they're done nobody is sure of anything anymore. Wa la, lawyer wins by default.

It makes no difference whether the original laws were well or poorly written. In the long run, The Practice of Law generates more social entropy than any other profession (maybe more than all of them combined). [oh, yeah, except maybe politics]

Formal logic is a tool. It can be misused. Many lawyers do it for a living.

Meanwhile, I can't help jumping into the side-stream.

but there are real, identifiable social problems that people in leadership are trying to address

Pick any moment in the history of any nation, anywhere in time. At that moment there was most assuredly some sort of bullshit or another going on. Most usually, several various types all at once. Each of the various types had the effect of pushing the apple cart toward the ditch.

There is no perfection and there never has been. Deal with it.

Historically, "leadership" occassionally addresses real problems. The rest of the time they seek to create problems that will help you realize just how badly you need to support them and vote for them and send them your money. That's what leadership does, because "leaders" want "power".

As for what "we the people" are doing, most of the time we're too damned busy just trying to make a living. You know, it's that "keep the apple cart out of the ditch" thing.

Now days, we're also busy posting babble on the web.

There is a reason the ancient Greeks abhored anything larger than a city-state. If it got any bigger, then no one person would be able to understand all of what was going on....
and it's hard enough anyway, even if you can see the whole rock garden at once.

|7.7.05 @ 9:37AM|

I like the idea of a federal journalistic shield law, akin to attorney-client privilege, and I agree with Welch's suggestion that it be written to protect journalism, not journalists.

But that's completely irrelevant to this case. If an attorney witnesses his client committing a crime, he cannot invoke the privilege. In this case, Miller (allegedly) witnessed the leaker (we'll call him K. Rove. No, too obvious, Karl R.) commit a federal crime. The privilege wouldn't apply anyway.

|7.7.05 @ 9:54AM|

And what's this "only one successful prosecution" nonsense? What does that have to do with anything?

How many people are successfully prosecuted for Treason?

|7.7.05 @ 9:58AM|

Matt suggests that anyone who aims to publish should have protection. Is there any indication that she did intend to publish it? She didn't publish it. Does that put her beyond the protection of his proposal, as presented.

More important might be the (admittedly tired) slippery slope argument. Could I not, as a crafty participant in an extensive burglary ring, run a blog, anonymous or otherwise, detailing the exploits of my colleagues and encourage them to do the same, names withheld as anonymous sources, of course.

Would not Matt's plan, as currently presented, exempt any of us from testifying against the others?

Throw in terrorism rings, kiddie porn rings, crystal meth rings, etc.

Just wondering.

|7.7.05 @ 9:59AM|

I find myself uncomfortable with the distinction 'people who speak freely for a living'. I just don't know that I see a right to secret sources. Certainly, I don't see one that is derivable from first principles. I'm similarly unconvinced that there is a big problem here needing to be addressed. I can be compelled to testify on almost any matter not related to incrimination of myself or my spouse. I don't see that something like a press pass should give someone a waiver to fundamental treatment under the law like that.

Regarding gaius' comment that Matt is skylarking. These things need to be said every once in a while. Libertarian publications and blogs are notorious skylarkers. One of the most damaging forms of self denial is the tendency for libertarian scribes to tell us that most people really are libertarian. I largely disagree with gaius' analysis of root causes, and I don't even especially agree that this article is an egregious example, but it would help if we were all a tad more consequentialist. Constitutional interpretation won't save us. Argument from Natural Rights won't save us. What might save us is convincing lots of people that it is in their best interest to agree with specific policies we advance.

|7.7.05 @ 12:26PM|

See Mickey Kaus' critique of Matt's idea at http://slate.msn.com/id/2122030/

"The same goes for Welch's standard, I think, though it's trickier, requiring journalists to identify themselves to their subjects. Will a blanket declaration do? If so, I hereby make it. How about a little button I could wear on my lapel--'I'm a blogger and I could write about any of this'? I doubt that even mainstream, credentialed reporters identify themselves to everyone they encounter in the course of their work. Did Earl Caldwell identify himself to all the shady characters he observed while doing his reporting on the criminal underground? If you report on a battle in Iraq, do you identify yourself as a journalists to all the soldiers? On both sides? If not, you might not be protected by Welch if you saw one of them do something relevant to a judicial inquiry--or if you would, then we could all protect ourselves just by identifying ourselves as bloggers to one person in the crowd. Update: And what about an anonymous source, as in the Miller and Cooper cases? There'd typically be no way to find out if bloggers had 'identified themselves' to such a source without compromising the source's anonymity. Either that, or courts would have to take the reluctant blogger-witness' word for it.

"Eventually the same dilemma looms: Either the privilege is a lot narrower than people like Welch would want it to be, or else--in a world in which everyone is a citizen/journalist--it swallows up a lot more of the testimonial obligation than they want to admit."

|7.7.05 @ 6:41PM|

The whole "gathering original material" thing promises that 99.9% of bloggers would not be protected.

|7.7.05 @ 10:37PM|

Like her own personal Erin Brockovitch...

Based on what we know about Brockovitch (the real one, not the Julia Baboonsassface portrayal) I'd hardly call that comparison a compliment...

|7.8.05 @ 2:58AM|

Hakluyt:

Your historical examples about authoritarian regimes are a bit off. The paradigm I'm most familiar with works like this: Oppressed people are more likely to get up to a little rebellion if they have a hint of hope that it might be successful. Those who are convinced that a struggle would be doomed despair of earning their freedom. In both late 18th century France and early 20th Century Russia liberalism, in its original meaning, was in the air. France had the writings of the philosophes. In both countries, military officers who had been abroad returned home with their heads stuffed full of dreams of liberte. In France they were les americaines (sp?), including the likes of Lafayette and Rochambeau. Russia had the Decembrists, who revolted on behalf of constitutional government in 1822. While there wasn't any "Russian Spring" prior to the 1905 revolt, many reformers still remembered the liberalization of Alexander II, who was assassinated in 1881, and appealed to his grandson, Nicholas II. Nicholas agreed to a legislature, the Duma, and his Prime Minister, Pyotr Stolypin , undertook economic liberalization that, had he not been assassinated, and had WWI not broken out, might have allowed Russia to transition into a true constitutional monarchy. (Yes, that's a lot of ifs - and assassinations!)

Kevin

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