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Telling the Miller’s Tale

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As Atrios notes, this Salon article is just awful. If I can highlight one particularly illogical argument:

Compelling a reporter to reveal his or her sources to the police turns that reporter into a police agent, and that’s not acceptable, even in unsavory circumstances like these. No reporter can be expected to check out the legality or ethics or motivations of all sources in advance. All sorts of surprising people talk to reporters when they probably shouldn’t, for all sorts of personal and political and psychological reasons. If journalists can only receive confidential information from the saintly and the pure of heart, the entire enterprise might as well become “The View.”

The most obvious problem is that this logic, if taken seriously, would mean that the government could never compel anyone to reveal information. Anybody who has information about criminal activity, in this sense, is acting as a “police agent.” Someone may tell anybody, not just a reporter, things about criminal activity, for a variety of reasons. Since nobody thinks that an ordinary citizen can’t be compelled to reveal this information, this argument gets O’Hehir nowhere. And then, to make things worse he drags in a ridiculous red herring about relying on “the saintly and pure of heart.” To state the obvious, there’s a rather expansive middle ground between “saint” and “breaking federal law,” one that in fact most of us occupy. You can give all sorts of information to reporters, for a variety of bad motives, with an expectation of confidentiality so long as you aren’t breaking the law.

The fact that so many self-serving and specious arguments are advanced to defend a reporter’s privilege does not, of course, mean that some federal protection isn’t desirable; it probably is. But I am becoming completely convinced that the kind of nearly categorical privilege that would be necessary to protect Miller is not a good policy; I certainly have yet to hear a decent argument for it. (And it’s also becoming obvious that I did the right thing by not re-upping my Salon subscription.)

As an addendum, this is a really good point–the holier-than-thou stance of the NYT is relatively cost-free, since (unlike Time) they were not facing any financial penalty.

…to follow up on a discussion in comments, I will concede that O’Hehir gets one thing right:

Even if you believe that Judith Miller is nothing more than “a shill for the Bush administration” (a Florida reader) or “a co-conspirator in a government coverup” (a Missouri reader), she’s still entitled to the same constitutional protections as Greg Palast and Amy Goodman.

Yes. Miller has exactly the same constitutional right to refuse to respond to a subpoena as Palast and Goodman: none whatsover.

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