Solipsism Is Not A Free Speech Principle

Given my effusive praise for the terrific cover story (buy it at your local newstand!) , I am obligated to note that this article by Jeffrey Rosen about the Fitzgerald indictment is, um, not good. There are a lot of bad parts, culminating in the absurd comparison of Fitzgerald’s indictment with the Starr Inquisition’s prosecution of Julie Hiatt Steele. But it does do one thing that Miller’s defenders generally haven’t: articulate an actual shield law. And, amazingly, he’s proposing one that would indeed protect Miller:

It’s a sign of the declining political clout of the traditional media that Congress is in no rush to pass a version of a federal shield law that would protect professional reporters from having to reveal their sources in federal investigations (except in cases where the disclosure is necessary to prevent imminent harm to national security). Thirty-one states and the District of Columbia have shield laws, as do a number of European countries. But a bipartisan shield law bill is moving slowly through the House and Senate, in part because of the opposition of the Justice Department and in part because of opposition from bloggers.

Such a law would, of course, be terrible public policy: a journalist can’t reveal a source, to provide information about a serious felony, even if the public interest is minor? That’s absurd. And it also creates the bizarre idea that this protection should be given to identities (“professional reporters”) rather than an action (“journalism”). This is silly, but also inevitable given the near-absolute shield, which requires it be available to a small number of people. A more rational law, that would balance interests more reasonably, would allow us to focus on the activity, not the identity of the person doing it. But would this uphold the principles that Judy Miller stood for? Which brings us to Respected Small-Circulation Journal With Good Taste in Guest Authors Matt:

The right of journalists to protect their sources? But Libby wasn’t a source for any article Miller wrote or was planning on writing. Nor was the fact that Libby had spoken to Miller on the day in question a secret, Libby had already said as much to the prosecutors. Miller was protecting not the identity of her “source” but the content of what the source told her. There’s no journalistic principle saying reporters shouldn’t disclose what their sources tell them. It would be very hard to write articles on the basis of that principle. Reporters are in the business of disclosing what their sources tell them. They’re not, ordinarily, in the business of saying who their sources were, if their sources don’t want to be identified. But, again, Libby had already identified himself.

There was no principle here. Miller was refusing to testify in order to protect a friend from a perjury charge. That’s an understandable thing to do. People like to protect their friends. The New York Times by agreeing to assist Miller in her quest and drag the first amendment into it managed to delay the investigation by a year. There’s a non-trivial chance the paper, and Miller, thereby got George W. Bush re-elected. Good work.

This is quite right. And I think the implication here is that, as fun as it is to make fun of the Queen of All Iraq the Times should really take the most heat. Miller was trying to save a friend, had good reason to use the First Amendment instrumentally, and was willing to go to jail. Nothing admirable, but nothing awful (unlike her actual Iraq reporting.) But to have invested its capital to defend her despite the utter lack of any free speech principle being involved was a horrible decision by Keller, and more than anyone else reflects badly on him.