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Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Tuesday, October 12, 2004

Times panjandrums sermonise on Miller-Plame

It's not often, I suspect, one sees
By ARTHUR OCHS SULZBERGER JR., chairman and publisher, and RUSSELL T. LEWIS, chief executive, The New York Times
in the 'newspaper of record'.

And no bad thing too, if their effort yesterday is anything to go by. The lede sets the tone:
Last Thursday, a federal district judge ordered a New York Times reporter, Judy Miller, sent to prison. Her crime was doing her job as the founders of this nation intended. Here's what happened and why it should concern you.


(Since when is she referred to in the paper by that diminutive? No doubt it tested well in focus groups - the Big Bad Administration (of Georgie Bush, that would be) picking on poor lil' Judy.)

After reciting the facts, the pair get onto their pitch:
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."

Thus, an industry casually shriven of two hundred odd years of abuses. And the fourth estate was held so dear in the American polity that - to give but one example - it was a mere 140 years from the making of the First Amendment before the unconstitutionality of prior restraint was established [1].

On such delusional foundations, it is hard to build anything of value. The piece calls on
Congress to follow the lead of the states and enact a federal shield law for journalists.

An OJR piece says that
Congress, meanwhile, has never enacted a federal shield law, though dozens of bills have been introduced.
and quotes an ASNE counsel as saying
Unfortunately it's a difficult thing to get accomplished because media organizations really want an absolute privilege and a lot of legislators want a limited privilege that would apply only when absolutely needed, in certain circumstances for certain people. That has made it difficult to get a groundswell of support.

It is just possible that the reason why Branzburg is such a dog's breakfast is precisely because delimiting a reporter's privilege that respects the citizen's right to see the law effectively enforced is so damned difficult!

Displays of outrage from the scarcely disinterested locale of the NYTCo's executive suite are scarcely likely to assist.

(Since this mythical statute would not - surely? - be retrospective, it wouldn't do La Miller much good, either.)

  1. In Near v Minnesota.


On the substantive issue, I'm handicapped in forming an opinion by ignorance of the res.

One or two potentially interesting URLs (the first two PDF) have cropped up that might serve to fill the void: a January 2004 law review article Protecting Journalists from Compelled Disclosure: A Proposal for a Federal Statute by Jennifer Elrond; a 2000 Joan Shorenstein Center article The Reporter's Privilege: Then and Now by Stephen Bates; a site The Reporter's Privilege ("a complete compendium of information on the reporter's privilege"); a short piece on reporters' shield laws: a 2002 AJR piece on the Vanessa Leggett saga.

Earlier pieces here on Plame and reporters' privilege August 10, August 13 and August 20.

MORE (December 17)

Some more interesting URLs, mostly PDF:

A 2004 law review article by Edward L Carter Reporter's Privilege in Utah.

A New York City Bar Association paper on The Federal Common Law of Journalists' Privilege.

A piece from an emanation of the ABA on the Valerie Leggett case, with some history of reporter's privilege.

A law review article by Leslie Warren A Critique of an Illegal Conduct Limitation on the Reporters' Privilege Not to Testify.

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