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God Bless Judith MillerTwo cheers for our courageous First Amendment martyr.

By Jack Shafer
Posted Friday, Oct. 8, 2004, at 6:44 PM ET
Miller gives Fitzgerald the fits

Judith Miller can thank special prosecutor Patrick J. Fitzgerald for her instant make-over from journalistic pariah to First Amendment martyr. Miller's coverage of weapons of mass destruction in Iraq before and after the war made her name synonymous with credulous reporting. But now that Fitzgerald has convinced federal judge Thomas F. Hogan that Miller's sources are essential to the investigation of the purported violation of the Intelligence Identities Protection Act of 1982, her vow to set up housekeeping in jail for up to 18 months rather than talk has made her a hero of the press corps.

(Back story: As you probably recall, two administration officials outed Valerie Plame as a covert CIA agent to columnist Robert Novak last year, and prosecutors have been aggressively subpoenaing reporters for the identities of their confidential sources connected to the story.)

I may sound cynical about Miller's motives; I'm not. I don't think she's digging in as part of a calculated scheme to reform her image. She's the sort of contentious cuss who would be flipping the bird to the courts no matter what the circumstances. We journalists are lucky to have somebody as spirited as Miller telling the government, "This far and no further," and willing to defend our First Amendment rights beyond composing an op-ed piece.

God bless you, Judith Miller, you impossible minx!

I assume Miller intends to stare down Fitzgerald and Hogan all the way to the Supreme Court, and if the court hears it we can expect a re-sculpting of the First Amendment law. The legal issue at hand is whether reporters have a special privilege—not shared by civilians—to ignore subpoenas issued in good faith in criminal cases. The law of the land on this is the 1972 decision Branzburg v. Hayes, which found, broadly speaking, that reporters have no such special privilege under the First Amendment.

But even though Branzburg found no special privileges for journalists, most prosecutors and courts have continued to extend various privileges to reporters on a daily basis. As First Amendment scholar Eugene Volokh writes in his blog, the courts have mostly followed Justice Lewis Powell's concurrence in Branzburg to carve out a qualified privilege for reporters to keep their sources confidential, but that privilege can be "overcome by a showing of sufficient government need." Volokh notes that "it's a bit odd" for lower courts to follow Powell's concurrence rather than the majority opinion, but "that's what the courts have done."

The Justice Department established the operational equivalent to a privilege for journalists in 1980 with internal guidelines—not legally enforceable, mind you—to govern the way reporters are subpoenaed. It has followed them fairly assiduously ever since. Indeed, the opening lines of the Justice Department guidelines sound like something written by an ACLU librettist:

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues.

The guidelines say that investigators should exhaust all reasonable alternative methods of obtaining information before subpoenaing a reporter. When Judge Hogan denied the motion to quash the Plame subpoenas served on Time magazine's Matt Cooper and Tim Russert of NBC News, he asserted that the investigators had satisfied those guidelines. Maybe. I don't believe for a moment that nobody inside the administration can be compelled to talk.

The reporters' privilege is not codified under the federal law, or the law of many states, as are the privileges accorded the relationship between a husband and wife, a lawyer and his client, and a clergyman and his congregant. So why, then, have most courts and prosecutors acted as though reporters have special privileges? Because they understand that the First Amendment does create a special class—and special zones the government must not infringe upon. The First Amendment protections of a free press are meaningless unless reporters are allowed to maintain confidential relationships with sources that inconvenience the government. People fear the power of government, and if threatened with a trip to the subpoena dungeon every time they speak, sources will learn to shut up. If the same threats are leveled against reporters, the First Amendment will become meaningless.

Remember, Novak wasn't outing a CIA covert agent mischievously: In my generous reading of the column, he was engaged in a political discussion, trying to make a point about the CIA's WMD-doubting views and not out to punish Plame's husband, Joseph C. Wilson IV, for writing his anti-Bush-administration New York Times op-ed, as many hold. I'll grant you that Novak's column was so poorly executed that I could be wrong, but even if you don't like his tune, you should salute Novak for blowing the whistle.

As I wrote last year, the outing of Plame may not have violated the Intelligence Identities Protection Act of 1982 because of the narrow way that law was written. One of the Justice Department guidelines holds that "there should be reasonable grounds to believe, based on information obtained from non-media sources, that a crime has occurred" before reporters are subpoenaed. Where is the prosecutor's evidence that a crime was committed?

Which brings us back to Miller. Even if you support Fitzgerald's subpoena of Matt Cooper, Tim Russert, Walter Pincus, and others who wrote about the administration leakers, you must concede the subpoena of Miller is a total reach. Miller only reported on the story. She never wrote about it. Fitzgerald seems bent on penalizing Miller for her knowledge of the case rather than for her proximity to the purported crime.

My 175-pound Samoan attorney, whose invisible hand guides much of my legal-affairs reporting, says that just as driving while black is against the law in some parts of the country, some jurists and prosecutors think that writing while working for the New York Times automatically constitutes a crime. If Fitzgerald and Hogan succeed in cowing the Times, who will be left to stop their Javertian investigation?

Ironically, the Intelligence Identities Protection Act was written to protect journalists from jail. Its authors intended to punish only government officials who deliberately compromised national security and U.S. publications and journalists that routinely exposed covert agents. They specifically crafted the legislation to exempt the odd reporter who reveals such information. That the law is now being used to indiscriminately line reporters up against the wall and menace them with a contempt sentence is preposterous.

The most mysterious aspect of the Plame investigation is Novak, who has refused to say whether he's been subpoenaed. If he's been subpoenaed and talked, shouldn't prosecutor Fitzgerald be signaling "game over"? Or, if he's been subpoenaed and refused to speak, shouldn't Judge Hogan want to jail him first? Or are is the prosecutor squeezing the tube down to Novak and saving his subpoena for last?

I am bewildered. I subpoena Patrick J. Fitzgerald for an explanation.

******

Who will serve my subpoena on Fitzgerald? Volunteers solicited at . (E-mail may be quoted by name unless the writer stipulates otherwise.)

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Jack Shafer is Slate's editor at large.
Photographs of: U.S. Attorney Patrick Fitzgerald by Frank Polich/Reuters; Judith Miller on the Slate home page from AFP/Getty Images.
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