Privilege vs. Prior Restraint

Roxanne notes that the Cleveland Plain Dealer is declining to publish a story based on leaked documents. As iocaste points out, however, the paper is clearly mistaken on the law, and it’s worth keeping two very different issues distinct.

If Judith Miller were being prevented from publishing what her source told her, then she would be a genuine First Amendment hero and a victim of a serious injustice, despite being a government propagandist. The government cannot stop a newspaper from publishing something (absent an immediate security threat, such as revealing troop movements); the law on this is unambiguous. But this has nothing to do with why Judith Miller is in prison. The question is whether reporters have to reveal sources suspected of illegal activity, not what newspapers are allowed to publish. According to existing federal law, Miller has no serious claim to privilege, and whether or not her imprisonment is wise it’s certainly legal. And, again, unless you believe in a virtually unlimited privilege Miller’s claim is exceptionally weak even if there was a federal shield law. The public interest in Miller protecting her source–from which she didn’t even get a story–in this case is negligible, and the public interest in finding out how an undercover CIA operative got burned is compelling. But none of this has any relation to the CPD refusing to publish a story; their cowardice is their own.