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Miller Lite

I'm torn on the whole Judith Miller saga. On the one hand, I'm a first amendment absolutist -- far more so than Miller's employer, the New York Times, which is fine with censoring people other than the Times. (Witness campaign finance "reform," which they wholeheartedly endorse. In fact, they were out there just the other day arguing for an expansion of the censorship regime imposed by McCain-Feingold.) On the other, I don't believe that someone working for a newspaper should have special rights that the rest of us don't have.

One thing I'm not torn about is the New York Times' pathetic attempt to defend its position and support Miller in a long editorial. It's filled with disingenuous comments and bad arguments. Where to begin?

Some people - including, sadly, some of our colleagues in the news media - have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, "I have no such right and I seek none."
Uh, maybe Farber did say that -- but Judith Miller was seeking such a right. In fact, not only is the Times lobbying for such a special right to be created by Congress, but they were trying to claim one already existed, even though the Supreme Court had expressly ruled otherwise.
Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources.
The Times is fond of pointing this out. But they fail to mention that very few, if any of those states, provide an absolute privilege not to testify. And the Circuit Court in this case explicitly addressed that issue, holding that even if a journalist's privilege exists, in this particular case it would not allow her to refuse to testify.
Most readers understand a reporter's need to guarantee confidentiality to a source. Before he went to jail, Mr. Farber told the court that if he gave up documents that revealed the names of the people he had promised anonymity, "I will have given notice that the nation's premier newspaper is no longer available to those men and women who would seek it out - or who would respond to it - to talk freely and without fear."

While The Times has gone to great lengths lately to make sure that the use of anonymous sources is limited, there is no way to eliminate them. The most important articles tend to be the ones that upset people in high places, and many could not be reported if those who risked their jobs or even their liberty to talk to reporters knew that they might be identified the next day. In the larger sense, revealing government wrongdoing advances the rule of law, especially at a time of increased government secrecy.

All that sounds very noble. The problem here is that it doesn't even come close to matching the facts presented in this case. Miller isn't protecting a whistleblower who exposed government wrongdoing; she's (assuming the Times' view of the Valerie Plame affair is accurate) actually protecting a government wrongdoer who tried to harm a whistleblower. We don't want such people "to talk freely and without fear."
The shroud of secrecy thrown over this case by the prosecutor and the judge, an egregious denial of due process, only makes it more urgent to take a stand.
Right. Except that this isn't a trial, and Miller isn't the defendant, so "due process" has nothing to do with the situation. Miller is a witness to a crime. Witnesses don't get to hear the government's case to decide whether they feel like testifying; it's not a "denial of due process" not to discuss the whole case with them, particularly in the context of a grand jury proceeding.

(Of course, if Miller is criminally prosecuted for contempt, she would be the defendant... but in that case, the details of the Plame affair would be irrelevant. The factual question would be whether she defied a court order, not what happened to Plame.)

There are other laughable parts to the editorial, such as where the Times compares Miller to Rosa Parks and Martin Luther King, but I don't need to pile on them. I am not saying that there can't be arguments in favor of Miller's position; I'm just saying that the Times does a very poor job of making those arguments.


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