"The public has no right to know"

Chief US District Judge Thomas Hogan has thrown Judith Miller in jail. The New York Times reporter will be incarcerated by American state security forces until she agrees to testify about a non-revelation she did not cough up in a story she did not write, or until the end of the grand jury's term in October. Time's Matthew Cooper has followed his publication's lead and agreed to sing. As I wouldn't want to be in either of their shoes, I'll make no comment on whether Miller or Cooper has more balls.

"We've got a bully-boy prosecutor in Washington who figures it's OK to toss reporters in jail for protecting their sources, a national magazine that got down on its hands and knees and licked his shoes, and a national newspaper that's holding its ground, although it does not much believe in free speech for anyone but newspapers," says Jay Ambrose.

"But there are some things the public has no right to know, including the names of covert agents," counters Steve Chapman.

Matt Welch will be hurling thunderbolts on this topic right here at Reason, in just a few minutes.

Comments

[Jennifer]

I STILL don’t understand this: if all they want to know is the name of the leak, why the hell isn’t Robert Novak the one in jail? If Novak’s free because he told them the leak’s name, then why the hell should Judith Miller be imprisoned?

[Gary Goldhammer]

It’s a bad day for due process but a worse day for the truth, the future of which is in serious jeopardy.

Journalists are only as good as their sources — without them there are only press releases and staged sound bites. Yes, unnamed sources should only be used as a last resort, but sometimes they are necessary. Sometimes they need protection — and so do the journalists.

Today will be remembered as one of the darkest days in the history of journalism, of freedom of the press, of freedom, period.

[Karl]

Why the outrage when this happens to Journalists(tm) but not the average joe? There should be no protected class of citizen called a ‘Journalist’. Either get rid of the Grand Juries power to throw people in the poky for contempt, or suffer along with the rest of us proles.
-K

[SY]

Lawyers and judges get testy when you won’t tell them everything they want to know the way they want to hear it, like it or not. There was a president who hesitated to answer, “Spit or swallow?” and look at the brou-haha.

[Brien]

While this isn’t the greatest event in the world, I sense a great deal of chicken littlism will be making the rounds.

[Jon H]

“If Novak’s free because he told them the leak’s name, then why the hell should Judith Miller be imprisoned?”

Presumably, because it’s a different person.

It’s my understanding that Novak came to some sort of arrangement with the prosecutor. Who knows what that means. Fitzgerald doesn’t seem to have any qualms about playing tough, so I’d think he got what he wanted from Novak.

[Amanda Hugginkiss]

I’m glad this terrible, dangerous criminal is off the streets. The money quote:

“Journalists are not entitled to promise complete confidentiality — no one in America is,” Fitzgerald wrote.

Ah. So US law supercedes my wedding vows?

[joe]

Jennifer,

That is a very good question. The only answers that could possibly make sense are 1) Novakula already gave the name up, or 2) somebody with a lot of pull got Fitzgerald to go easy on Novak.

Remember, Miller is not going to jail for blowing an agent’s cover. She’s going to jail for contempt of court, because she refused to provide the information demanded of her by a grand jury.

[Tim Cavanaugh]

Why the outrage when this happens to Journalists(tm) but not the average joe?

While you’re fighting the power there, Karl, note that Ambrose makes this point in his comments above, as did Welch in all his previous columns. He will also be making that point in his upcoming column. But keep speaking truth to those all-powerful journalistic elites, boy!

[Some Brian Dennehy Fan]

Err, maybe Karl’s point is that there are probably a bunch of other folk out there in jail for failing to testify before a grand jury, but you’re only hearing about two reporters.

Dunno, but saw a movie on this subject.

[Brett]

Help refresh my memory, as I haven’t followed this too closely…

Was Novak brought before this grand jury? Yes, no or we don’t really know b/c his testimony was private?

Will Cooper’s spilling of the beans help get Miller out of jail, or does that require action on her part?

Quite confusing.

“Novakula”…come on joe, you’re better than that!

[ChicagoTom]

From what I have been reading, it seems like its turned into a perjury case. It would seem that Fitzgerald believes that someone lied about something while under oath. And I think all these contempts of court are being used to prove said perjury.

[KJ]

There is no journalistic priviledge in federal law. Never has been. I am an attorney. I have a priviledge with my client. But sometimes, under certain exceptions, a court may find that I have to reveal confidences. After the appeals are exhausted, then you either follow the court order or suffer the consequences.

Journalists don’t have the right to interfere with a grand jury investigation, especially when the media was largely responsible for declaring that the so called “crime” (which the facts don’t seem to support) be investigated. The media (in general) had no problem demanding that Novack give up his source. The hypocricy (again, in general) is amazing. Be careful what you wish for.

I won’t be losing any sleep for those who think they are immune from answering to criminal investigations. Journalism as we know it will not die.

[joe]

Actually, what Chapman wrote was, “But there are some things the public has no right to know, including the names of covert agents.” You gotta problem wit dat?

Personally, if a guy told me to hold his suitcase for a minute, and the cops arrested me because there was an ounce of coke in it, I’d rat his ass out in a second. The bastard made me an accessory to a crime.

As did the leaker, when he blew a covert agent’s cover, make the person he blew it to an accessory to his crime. Especially if she helps him cover up his crime by refusing to turn over evidence (her testimony). Sort of like refusing to tell the grand jury where you saw the killer bury the body.

[Jennifer]

Sounds to me like Miller’s going to jail has nothing to do with national security–somebody’s on a power-trip, is all.

[joe]

Yes, Jennifer, it’s those silly judges, with their heads all puffed up with the idea that they can order witnesses to provide testimony that doesn’t incriminate them, or violate a legally-recognized privilege.

[Karl]

Tim – You looking to take over joe’s position as Snark-Boy(tm)? I’ll look into the arguments you suggest have been made and are forthcoming – though my preconception is that there should be no different standard for either, whatever the ‘all-powerful jounalistic elites’ come up with to justify a privileged position. But your powerful arumentation of belittlement has really put me in my place! “Truth to Power” – what an ass.
-K

[joe]

OK, Brett, how about “Nofacts?”

[Jennifer]

Joe-
What possible information could they need from Judith Miller that they couldn’t get from Novak? And, asusming this is all a punitive reaction for the Plame leak, why shouldn’t Novak be the one taking the heat?

[Eric the .5b]

What possible information could they need from Judith Miller that they couldn’t get from Novak?

They might not find Novak completely credible and want corroboration.

[Karl]

Tim – a little post-script: “…note that Ambrose makes this point in his comments above…”; No he does not. He never addresses the issue of compelled testimony in front a grand jury. He does allude to objecting to violations of free speech rights of all, including journalists. But there’s no general outrage at compelled testimony in front of a grand jury, only when it’s a journalist on the recieving end. I guess I’ll have to rely on Welch’s columns. I’ll get back to you when I can take a break from ‘fighting the power’.
-K

[Tim Cavanaugh]

Err, maybe Karl’s point is that there are probably a bunch of other folk out there in jail for failing to testify before a grand jury, but you’re only hearing about two reporters.

A fair possibility. But what’s with the “tm”?

Will Cooper’s spilling of the beans help get Miller out of jail, or does that require action on her part?

No and yes.

Actually, what Chapman wrote was, “But there are some things the public has no right to know, including the names of covert agents.” You gotta problem wit dat?

I thought that was understood, but as I don’t want any confusion I’ll put in the full quote. And I have got a problem with it because it has nothing to do with Miller’s case. She didn’t reveal anybody’s name. She didn’t even write a story. She asserted her right to remain silent to a prosecutor on a fishing trip-something every American should be allowed to do, even when the prosecutor’s potential for hurting the Bush Administration makes him sympathetic to the great and wise joe.

[Eric the .5b]

Alternatively, they might just want more than one witness around who’ll be willing to testify to the only known facts surrounding a federal felony if/when it goes to trial.

[theCoach]

“There are some things the public has no right to know,” counters Steve Chapman.
– as excerpted by Tim Cavanaugh

“But there are some things the public has no right to know, including the names of covert agents. If Ms. Plame’s exposure had made her a terrorist target, that would be painfully obvious.”
– Steve Chapman, in context.

Additionally, what exactly is the problem for anonymous sources that this will create? We have a journalist going to jail in order to protect their identity. This indicates to me that journalists are pretty good about keeping that identity.
How else is this supposed to work? I am not that informed about what is alleged in this case, but let’s look at a hypothetical:
Journalist A is working on a mob case, interviewing a member. During an interview, alleged mobster spots a rival and shoots him.
Prosecutors learn that Journalist A was at the scene of the murder, but she refused to testify because it would reveal her source. What is the mechanism for dealing with this claim of priveledge? My guess would be that the prosecutor should use discretion, but if this was crucial to the case it could be argued in front of a judge, and the judge could rule on whether or not Journalist A had to testify. Seems completely reasonable to me, depending on how crucial the journalists information is to prosecuting the crime (which in this case we have no idea about at this time, other than that the judge ruled for the prosecution).
But I would be welcome any better suggestions on how to resolve the issue.

[damon]

Hoooooooooogaaaaaan!

[Eric the .5b]

She asserted her right to remain silent to a prosecutor on a fishing trip-something every American should be allowed to do

I’m naturally sympathetic to this idea, but the common law tradition and the Bill of Rights both seem big on the idea that you generally can’t just decide not to talk if the testimony is not self-incriminationg – and that point doesn’t even matter in a grand jury investigation.

[Jon H]

Jennifer wrote: “And, asusming this is all a punitive reaction for the Plame leak, why shouldn’t Novak be the one taking the heat?”

Only if he hasn’t cooperated. The fact that he’s not taking the heat suggests he cooperated.

I mean, hell, Miller requested house arrest, or else to be at the Federal women’s prison in Danbury, instead of the nastier DC jail. Fitzgerald rejected that, arguing that a cushy stay at home would hardly convince Miller to testify.

[Tim Cavanaugh]

He does allude to objecting to violations of free speech rights of all, including journalists. But there’s no general outrage at compelled testimony in front of a grand jury, only when it’s a journalist on the recieving end.

He tags the Times for assuming journalists have a higher level of protection than others: “a national newspaper that’s holding its ground, although it does not much believe in free speech for anyone but newspapers.” If your complaint is that he didn’t phrase it exactly the way you wanted, then write your own article.

Where does this idea come from that journalists are some kind of well-heeled elite separate from the “proles,” anyway? Do you know what reporters make? How is it that when celebrities and politicians and federal prosecutors come into conflict with the media there’s always somebody thinking he’s sticking up for the underclass by defending the celebrities, the politicians and the prosecutors?

[Karl]

Tim – Having read Welch’s column, his point 1 is all I’m arguing. The grand juries power should be rolled back across the board. As was specified above, this sort of thing happens to people all the time. I don’t see the outrage except when it happens to a certain class of citizens – that’s what ™ means – some specially defined class of citizens (whether self defined or externally defined) that enjoys privileges before the law not extended to their fellow citizens. Welch makes the argument that protecting journalists is a ‘pinky in the door’ to further rolling back the grand jury power. That’s a legitimate tactical position. Perhaps the attention drawn to this sort of thing when it happens to journalists will help reign in GJ’s. But the outrage seems a bit contrived and focused on the employment of the victims. If I was sitting in a DC bar with a friend who told me the name of CIA operative and I told some other friends etc. and I got summoned to a grand jury and told them “hell no, he’s my friend, I don’t want him to get in trouble and plus I won’t get any more cool strories out of him if I rat him out!”, they’re going to toss me into prison – would that warrant a blog entry on Reason? The simple question is whether the outrage in this case is a result of the high visiblity or the job description of the victims? Welch addresses this in his piece, but never really comes out and says that the same law should apply to all people, including journalists. He alludes to this idea in concluding that extending privileges to journalists should happen to pressure reigning in GJ abuses. But once the GJ process is reigned in… That’s my one and only point. Do you (generic) as journalists support a special standard for journalists as a matter of policy (that was the impression one gets from all the gnashing of teeth)?
-Karl

[Eric the .5b]

Probably from those journalists who think “freedom of the press” only applies to them and is simply a codename for things they’d like as professional privileges.

[rafuzo]

damon: A+
some brian dennehy fan: A+ for the name alone (your comment was pretty good too)

Where does this idea come from that journalists are some kind of well-heeled elite separate from the “proles,” anyway?

Probably the fact that Miller et al were basing their defense not on the fact that a citizen doesn’t have to reveal confidences of relationships they have with other private citizens, but the fact they entered and kept these confidences as a function of their profession, and that they are acting in a professional capacity by doing so. In other words, they aren’t saying “we have a right to keep our own damn secrets, thanks very much”, but rather, to paraphrase Dr. Peter Venkman, “back off, man. I’m a journalist.” That kind of defense tends to imply that they have some special rights above and beyond those of the proles.

Well-heeled, mayhaps not; but these defendants definitely have a chip on their collective shoulder.

[Tim Cavanaugh]

I’m naturally sympathetic to this idea, but the common law tradition and the Bill of Rights both seem big on the idea that you generally can’t just decide not to talk if the testimony is not self-incriminationg – and that point doesn’t even matter in a grand jury investigation.

I know, I know. The way around this is to make very tight parameters around what the grand jury is supposed to look into (which I’m not sure would have helped Miller in this case anyway). Grand juries in their current usage cast extremely wide nets around very broad areas, with pretty meager results. After all this buildup, Fitzgerald had better come up with an indictment of Karl Rove or better, or this is going to be a pretty damn disappointing expedition.

[Eric the .5b]

That I can agree with.

[Karl]

“If your complaint is that he didn’t phrase it exactly the way you wanted”.

No – my complaint is that this has nothing to do with the issue at hand. He’s talking about the NYT defending Campaign Finance. This has nothing to do with compelled testimony. That’s the double standard I was originally alluding to. Do journalists get a special privelege not to testify in front of a GJ whereas all other citizens are denied that privilege? I’m not sure how you infer anything else from my original comment.

Elitism doesn’t have to have anything to do with salary and I have no special interest in sticking up for any class, under or otherwise. Your being obtuse. It’s a very simple question: Do journalists have an additional protection against providing compelled testimony above and beyond that extended to the rest of the people? If you answer in the affirmative, then I would argue that you are arguing for an elite privilege, regardless of the status of you heels.

-Karl “trying to avoid finishing a referee’s report”

[Tim Cavanaugh]

Welch addresses this in his piece, but never really comes out and says that the same law should apply to all people, including journalists.

In fact, he comes out and says it should apply to people who are doing journalism. So you telling your buddies some confidential information would not be protected. You writing an article about confidential information would be protected. Is it that hard to see that there’s a first amendment concern in one case but not in the other?

[Karl]

“Is it that hard to see that there’s a first amendment concern in one case but not in the other?”

Yes it is. Please explain it to me – seriously. It’s purely semantic in my mind. In both cases, I’m sharing information with other people. In the first, as a citizen talking to other citizens. In the second, as a citizen employed as a journalist writing to other citizens. The 1st amendment says, in part – ” Congress shall make no law…abridging the freedom of speech, or of the press;” Why does only the second clause engender protection before a GJ in your eyes? The only logical conclusion I can come to is because I’m practising a certain profession. So in answer to my query above, the answer is yes, you do believe in special privelge before the law extending to a subset of people based on their profession. So we return to my original ridiculed comment….
-K

[Jason]

Welch is so full of hot air.

What is real interesting is that the law that is in Congress now is basically the same test used by Judge Tatel in his concurrence when the case was in the DC Circuit.

Tatel said, “We must take care to ensure that the special counsel has met his burden of demonstrating that the information is both critical and unobtainable from any other source. Having carefully scrutinized his voluminous classified filings, I believe that he has.”

Then Tatel cites a bunch of classified stuff that none of us have access to.

Now you can legitimately take issue with the fact that Miller and Cooper are asked to defend themselves against evidence they also don’t have access to, but that is quite different than saying that the evidence doesn’t support it.

Tatel is very sympathetic to the reporters and has taken a much more expansive view of the privilege than has been recognized in federal courts previously, yet, having seen all the data, something none of us have, he said they should testify.

[tdf]

“what an ass.”

Karl, be careflu about calling Tim “Nearly Headless” Cavanaugh an ass. Your comment might get deleted.

[Karl]

tdf – So be it. Just a reaction to the charterization as ‘boy’ and trying to tie me into some young naive with comments like ‘truth to power’. Things seem to have settled down to something a bit more civilized…
-K

[Tim Cavanaugh]

Why does only the second clause engender protection before a GJ in your eyes?

Because the need here is to balance the legitimate functions of a grand jury with the legitimate need for a free press. As Eric noted above, there’s a longstanding presumption that witnesses to a crime can be compelled to testify, and that you can’t refuse to talk at any time for any reason. If you disagree with that, more power to you. But that’s not what’s at issue here. This case is about the principle, recognized in a handful of states, that the need for a free press requires some narrow exceptions to that blanket requirement.

[Karl]

Tim – That was my position from the begining (there should be no exemption based on membership in a certain profession). The importance of a free press is no more important than the freedom of any other group. I think the rules for compelled testimony in front of a GJ should be *extremely* narrow and there should be no exemption based on profession. That was the gist of my original comment. If you had just stated up front that you believe that there should be a class of citizens treated differently before the law, we could have avoided this whole pleasant interlude and I could have gotten my report finished up!
-Karl

[P-R-I-V-I-L-E-G-E]

Why are people having such trouble spelling the word privilege? Maybe if y’all did some cursory copyediting one could take your ‘journalists are no better than us proles’ schtick a little more seriously.

[Karl]

Sorry, don’t copyedit blog posts. But thanks for the informative and useful addition to the discussion. I glad you’ve found something substantive to help you form your opinion about what should and should not be taken seriosusly.
-Karl “i before e except in privelge where e has a privileged place wrt i”

[Eric the .5b]

Maybe if y’all did some cursory copyediting one could take your ‘journalists are no better than us proles’ schtick a little more seriously.

It’s not an “editors are no better than us proles” schtick.

[karl]

[e-mail] – 5 to 2 correct vs. incorrect spelling of you special word in my posts; but if two sloppy spellings make you comfortable to dismiss the rest as ‘schtick’, congratulations (is that with a ‘t’ or a ‘d’?!).
-Karl “Speaking Incorrect Spelling to POWER!”

[Terry]

Well, aren’t you journalists so special.
“We hold these truths to be self evident, that ALL MEN are created EQUAL…”
Well, I guess you are supermen, right?
Ironically, this is being posted on a blog, which in the last election proved what inept, self important, horse asses, blowhards you average journalist is.
You don’t need a journalism school, unless you feel its important to dumb yourself down, to become a journalist.
Journalis is someone who isn’t a good enough writer to be a novelist and to dumb to be a historian, or anything else.

[Matt Welch]

Journalis is someone who isn’t a good enough writer to be a novelist and to dumb to be a historian

Amen to that!

Karl — One distinction between you talking with your buddies or you publishing the information is that chances are extremely high that your private conversation would never become known, and therefore eligible for subpoena.

As for special classes of people, we *do* have such categories already — therapists, lawyers, priests, spouses. They are, luckily or unluckily for them, easier to define, but the point is that we *do* collectively recognize that certain professions or family status dramatically increase one’s likelihood of being exposed to questionable information, and that therefore they should be given some protections so that they can do their jobs or behave like humans.

If you publish or broadcast stuff every day, based on information you obtain and interviews you do, you will be exposed to much potentially questionable behavior by definition. But, since we (or at least I) don’t *want* journalism to be some kind of licensed profession, and since it in fact isn’t (it’s an activity, done by both professionals and “amateurs”), I’d prefer a shield that covers anyone who is in the process of conducting journalism.

Why? Partly out of my own self-interest, partly because I want to jam as many fingers in the door of Grand Jury power as possible, possible because I’m generally cranky about the government’s ability to compel *anyone* to testify, and partly because I think that source-confidentiality is one important tool for the exercise of free speech and free press.

As for journalists only seeming to notice these things when it bites *them* in the ass, I will plead guilty, point out the obvious that I write about the media, and also direct you to the following columns:

Taking the Fifth: When journalists threaten our right to remain silent
Only Money: Campaign finance reform bites supporters in the rear
Fair-Weather Friends: When journalists depart from free-speech battles

[Denise]

I have a bit of conflicting emotions on this whole case against Judith Miller.
First and foremost, if she is protecting someone who intentionslly gave up a secret operatives name with completely ulterior motives, ie: retribution for criticizing good ole George W., then she needs to give that criminal up. Whomever gave up the name not only put her (the agents) life in danger but committed a crime that is beyond political BS.
Secondly, since Ms. Miller never wrote a story, only gathered information, why should she be “compelled” to do anything? Her byline was never above publicly released information.
Third, Patrick Fitzgerald is following in the tradition of prosecutors everywhere. Use a grand jury to get just enough testimony to run out and try to prosecute any person(s) you can label a criminal. I truly believe that is a misuse of a grand jury when no crime is intended.
As for Novak, well now we all know he is a snake who rolled over to protect his own derriere and is now being Mr. Holier than Thou by not being honest enough to just say if he testified and gave up a source or not. Naturally I suspect he has and is now trying to cover his own butt by keeping his mouth shut this late in the game.
Judith, you stand by your principles and for that I appaud you.
Fitzgerald, go after the real criminal with what you already have or give it up.
Novak, come here and let me slap the stupid out of you.

[Karl]

Matt – I understand that there are protected classes. My prefered solution is not to have protected classes at all, but to serverly restrict the ability of the state to compel testimony through GJ. Once that ability is restrained, there need not be any exceptions for any class of people. Your approach is much more practical in application (in the sense of having a snowballs chance in hell of being realized). It’s also clear that insomuch as revealing sources is concerned, it will almost always be a professional journalist under the gun and therefore extending a special privaleige covers more relevant cases. Not so for general compelled testimony before a GJ. That is what rankles I guess – people get tossed in the can for refusing to testify, certain classes don’t; it does violence to my sense of equality before the *law*, as I sense it does yours. However you seem burdened with this weird concept of praticallity and how to achieve the best possible solution! 🙂
-K

[Girth]

I see this case in much the same light as I see Senate filibusters. If the people in the Senate want to filibuster, fine, but actually filibuster. Stand up and read a book. Hold the floor.

If a journalist wants to protect his or her source, fine, just realize that you may have to go to jail to do it.

“Buy the ticket, take the ride.”
-Hunter S. Thompson

[Tim Cavanaugh]

Where is this business of “classes” and “privileged classes” coming from, Karl Marx? The distinction is that a person who is working in a news-gathering and disseminating capacity will be dealing in sensitive information and may be served by the same sort of legal protections as priests, shrinks, etc.-not because of who they are but because of what they’re doing. How is that a “class”? The law makes distinctions all the time based on the type of work you’re doing. Are cops a “class” because they can kill people and the rest of us can’t? Are firefighters a “class” because they can break down doors and windows and the rest of us can’t? I’d like to have the power to issue subpoenas and prosecute people, but since I’m not a district attorney I can’t do that either. And what about those nurses who get to work with powerful drugs and radiological equipment that I could be arrested for having in my own home? Those damn cops and firefighters and dental technicians and DAs, sitting pretty in their country clubs, lighting their cigars with $300 bills! Down with the ruling classes! Fight the power!

[Tim Cavanaugh]

…None of which means I don’t agree that compelled testimony should be sharply circumscribed or done away with completely. Back on planet Earth, that ain’t going to happen (see the guy who refers to “letting the perfect be the enemy of the good” in the discussion of Welch’s column a few posts up), and I still value non-press-release news more highly than I do the opportunity to slag those big bad Journalists for the umpteenth time.

[Ron Hardin]

It’s a compromise. The NYT gets to be holier-than-thou and the reporter gets out when the grand jury disbands.

[Phil]

Wow, so now we’re going to pretend that the word “class” is limited to describing only socioeconomic strata, and is not an all-purpose word used to describe distinguishable categories of things, if it helps our arguments? That goes beyond disingenuity into outright stupidity, really.

[joe]

“Grand juries in their current usage cast extremely wide nets around very broad areas, with pretty meager results.”

Mmm hmm. And if the Great and Wise Tim decides, from his perch on the sidelines, that the net is too wide or the results likely to be too meager, you get to ignore the judge when he tells you to give testimony.

I believe this is covered in the Bloorteenth Amendment.

[joe]

The journalistic prvldge, where it exists, allows journalists to refuse to testify about a source that provided them with information.

But just as attorney-client prvldge doesn’t extend to a client who actually commits a crime in front of his lawyer, neither does journalist prvldge extend to journalists who observe a crime. If the leak to her was a crime, she is not allowed to cover it up.

Now please ignore my previous two posts because, as somebody who diapproves of George Bush, nothing I write can have any validity.

[Karl]

Tim – Another clever rejoinder! You can make a funny with my name! Cops *don’t* have the right to kill people, any more than I do; we both have the right to defend ourselves and our neighbors against agression. Firefighters *don’t* have the right to break out windows and doors anymore than I do – eg. when there’s a frickin’ fire in the house. You should be able to have drugs and powerful radiological equipment in your house – the fact that your aren’t is not an argument to keep extending priviuoulegas to other protected CLASSES. DA subpeona power is an extension of private citizens power, ceded to them as agents of the state. They are acting in their capacity as an agent of the state (one of the few legitimate powers states should have). Journalists are not – they’re simply citizens with a certain profession. And please continue with the assinine name jokes and allusions to fat cats with cigars and $300 bills – because that’s clearly exactly what I’ve been talking about this whole time. Very effective. And as a side benefit, I don’t feel that little twinge about calling you ass earlier. You’re amply demonstrating that the anatomy fits. Wear it proudly.
-Karl “How in the hell did Tim manage to get caught in this rich fight the power meme?!” Marx

[KJ]

Maybe I’m confused. I already know I can’t spell, which is why I pay someone to check that on real stuff, but not blog comments.

Isn’t the dissemination to the journalist the crime itself? Attorneys are not allowed to refuse to testify under the crime-fraud exception to the a/c privilege (unless if qualifies as taking the 5th for the attorney). So why would a journalist, not breaking the law, be allowed to refuse to testify when the journalist was the witness to the crime?

This covers the issue pretty well:

http://www.villainouscompany.com/vcblog/archives/2005/07/ny_timeswatcha_4.html#more