The Times' next First Amendment embarrassment.

Policy made plain.
Oct. 21 2005 12:01 AM

After Judy

The New York Times' next First Amendment embarrassment.

Here in mediaworld, we're all quite cross at the New York Times and its former star reporter, Judith Miller. She is widely believed to have sought her martyrdom as a career move. And then she gave up after a mere couple of months in jail. What a wuss! And the Times: This great institution let a mere reporter lead it around by its nose, with predictable results. What a super-wuss!! But this latest blow to the reputation of the MSM (mainstream media) cannot be pinned on Miller or the Times. It is the result of a sentimental and self-indulgent view of journalism that is widely shared in mediaworld—including by many of the journalists and media institutions now distancing themselves from Miller and the Times.

At the New York Times and beyond, the cult of the anonymous source continues strong. The Times has conceded that in theory a journalist's right to protect the identity of a source is not absolute, but the paper has not said what the limits are. Judging from the Times' feverish defense of Miller, it is hard to imagine what circumstances would exceed those limits. An exemption for journalists from the basic citizen's duty to cooperate with law enforcement is supposed to encourage troublemakers who want to tell truth to power. But Miller was being used by people in power in a secret campaign to undermine a troublemaker. The conversations Miller wanted to protect are not merely evidence of a possible crime—they are the alleged crime (outing an undercover CIA agent) itself. If the reporter is immune from testifying, the law in question might as well not be on the books. The Times asserts this right to foil the justice system not just for itself as an institution but for each of its reporters individually. And it even claims the right to ignore all judicial rulings, up to and including the Supreme Court, if these bodies happen to disagree.

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In order to give journalists special privileges like this, you have to define who is and who is not a journalist. That is harder to do in the age of the Internet. One reason for the explosion of hostility against Miller and the Times is the resentment of the blogosphere. Blogging is, if anything, more like the kind of pamphleteering the framers had in mind when they guaranteed "freedom of the press" than is the New York Times or Washington Post. But if everyone with a blog or an e-mail listserve is a journalist, who isn't?

Another opportunity is coming up for the New York Times to lead the mainstream media off a First Amendment cliff. The first day under its new management, the Supreme Court agreed to decide several cases about campaign spending and the Constitution. The most important is a challenge to a Vermont state law limiting how much a candidate can spend running for governor. The law was explicitly intended to goad the Supreme Court into reconsidering its current doctrine on campaign finance, which holds that (with various complications) the government may put limits on campaign contributions, but campaign spending is an exercise of free speech and therefore protected by the First Amendment.

The court's equation of money with speech is the despair of bien-pensants everywhere, but especially at the New York Times. A Times editorial called the state of Vermont "laudable" (an adjective that exists only in newspaper editorials) and declared that "the absence of [spending] limits gives an unfair advantage to wealthy candidates, who can spend vast amounts of their own money."

That last point is obviously true. Unfortunately, it should be equally obvious that limits on spending for speech are limits on speech, both in intent and in effect. You can't use money to buy votes directly in this country, for the most part. Having more money is an unfair advantage only to the extent that it is spent on sending a louder or more persuasive message. The government can and should do many things to help make the softer voices louder. But when it tries to make the louder voices softer, it is reducing speech, which is unconstitutional.

One interesting revelation in that 6,000-word deconstruction of the Judith Miller affair in the Times last Sunday was the different ways the whole culture of anonymous sources leads to suppression of information. The identity of sources is just the beginning. Yet the Times believes that its First Amendment right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech.

As many have pointed out over the years, the Times might feel differently about a law that limited how much any one person or organization could spend putting out a newspaper, although that too would reduce the "unfair advantage" of some players over others. As a matter of fact, various legislative attempts to limit campaign spending invariably include an exemption for the news media, just to avoid that whole thicket. But this would be an excellent moment for the Times (and the Post and the other MSM) to reconsider all their various pleas for special treatment.

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