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First Amendment Chicken LittleE.J. Dionne gets hysterical.

By Jack Shafer
Posted Friday, Dec. 17, 2004, at 10:05 PM ET

From where I type in downtown D.C., the First Amendment seems pretty safe. But just blocks away, Washington Post op-ed columnist E.J. Dionne senses such a chill on our press freedoms that he's taken to composing his pieces in a parka, mittens, and Uggs.

It's a hard, it's a hard snow's a-gonna fall on the First Amendment, Dionne all but declares in this morning's piece, "Getting the Chills." Dionne shivers in horror over the six months house arrest dealt to Providence, R.I., TV reporter Jim Taricani, who refused to tell a court who gave him an FBI surveillance tape of a bribe. The prospect of Judith Miller and Matt Cooper being jailed for 18 months because they won't surrender the identities of their sources to a grand jury in the Valerie Plame case mortifies him. And he's verklempt over the blacklisting of two Denver Post reporters by Army officials.

He writes:

Dear citizens, are you feeling the chill?

There is a quiet campaign being waged against your right to know things. God forbid that ordinary folks should learn more about what government officials and others among the powerful might be up to.

As totalitarian censorship campaigns go, three unconnected clashes between the government and the press stretched over two years aren't the stuff of a Mussolini or a Stalin. Dionne, who must know his column sounds like an ACLU fund-raising letter, trolls the headlines for more evidence to fill out his "quiet campaign" thesis. He finds it in the published speculation that the Justice Department might investigate the Capitol Hill leak that led to reporter Dana Priest's Dec. 10 Washington Post story about a secret stealth satellite program. Dionne writes, "Will laws designed to keep secrets from our enemies be invoked to keep secrets from the taxpayers?"

Before we allow Dionne to panic Priest into packing her toothbrush and an airport novel bag for a stay in jail, let's review what happened the last time a Hill leak prompted a federal investigation. In June 2002, somebody on the Hill leaked information about 9/11-eve intelligence intercepts to various reporters, and the Justice Department assigned the FBI to find the motor mouth. Two years later the FBI identified Sen. Richard C. Shelby, R-Ala., as the leaker, according to this Post story. And what sort of music has Sen. Shelby faced? The Justice Department declined to prosecute the senator and passed the issue to the Senate Ethics Committee, where it will probably vegetate until Shelby's peers find a subtle way to slap his wrist. I predict the same scenario for the satellite leak: Angry prosecutorial noise, followed by investigative silence, followed by weak official reprimand, and ultimately another leak of intelligence information.

I'm a First Amendment extremist, and I ordinarily salute anybody who stands up for the first law. But I draw the line at alarmists like Dionne, who thrust their fingers into the air to discover "chilling effects" in the everyday conflicts between the state and press. A stiff breeze of government harassment has always blown on American journalists. (I wonder if he'd be in such high dudgeon—or even note the First Amendment threat—if the Miller-Cooper cases weren't in Washington.)

As press scholar Stephen Bates noted earlier this month in a Los Angeles Times op-ed, the government has demanded that reporters surrender the identities of their confidential sources for at least 150 years, and reporters have been defying them for just as long—often going to jail in protest. The Reporters Committee for Freedom of the Press documents dozens of cases in the last 30 years in which the courts have jailed or fined reporters for resisting subpoenas aimed at their sources or information.

Drawing on Reporters Committee statistics, Bates found that none of the 18 reporters jailed between 1984 and 2000 spent more than three weeks in jail and nine were released within a day. The longest time served by a journalist for contempt of a grand jury appears to be five and a half months, he writes. No reporter wants to go to jail, but in the long run I'd wager that such acts of civil disobedience are more effective in protecting press freedom than all the bleating columns by Dionne and his ilk.

Will Miller and Cooper go to jail? Los Angeles Times reporter Richard B. Schmitt found a sliver of good news for the defendants at their Dec. 8 hearing before an appeals court panel. Although the majority opinion in Branzburg v. Hayes (1972) seems to rule out any legal "privilege" for journalists to ignore lawful subpoenas, Judge David S. Tatel noted in his questions to prosecutors that since that case, the states and the U.S. Congress have passed legislation carving out all sorts of privileges for journalists and other professionals. And in 1996 the Supreme Court found that psychotherapists had an absolute right to keep their conversations with patients secret from a grand jury. Without endorsing the notion, Tatel asked prosecutors, if psychotherapists, why not journalists? If Miller and Cooper lose this round, as I'm guessing they will, their lawyers will surely present this logic to the Supreme Court.

Even if Miller and Cooper are jailed, it won't be lights out for the First Amendment any more than the Branzburg ruling spelled the end of free speech. If Dionne weren't such a showboater, he'd acknowledge that First Amendment rights have actually expanded over the last 100 years, giving journalists the constitutional right to access courts, official records, and open meetings, just to name a few. (See this First Amendment site for more good news.) The rights haven't come free, though. People like Paul Branzburg have had to fight for them..

I wish I could finish this piece with a free-speech sermonette about the martyrdom of Branzburg, about how he suffered in a dark jail cell filled with broken glass and spiders for two years after the Supreme Court ruled against him and he still refused to talk.

But I cannot.

In 1969, Branzburg was a young reporter writing investigative pieces about the illicit drug trade for his newspaper, the Courier-Journal in Louisville, Ky. Branzburg's then-editor, Paul Janensch wrote a wry piece about the case's trajectory last summer for the Hartford Courant. In it, he explains how Branzburg refused to surrender the names of users and dealers he had interviewed when commanded to do so by a grand jury. The case took three years to work its way through the judicial system, by which time Branzburg had departed the state for a new job. After the Supreme Court handed down its ruling, the Louisville prosecutor didn't even bother to track him down.

"The reporter never squealed, but he never went to jail, either," Janensch writes.

******

Paul Branzburg, where are you? The last address I could find for you was in the Detroit area, but it's now defunct. Please drop me a line 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.
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