The Fourth Estate

Freedom of the press. It's something that we talk about all the time. It's in the Bill of Rights - part of the First Amendment to the Constitution. And that freedom of the press to write what it wants needs to be upheld.

So it is somewhat troubling to hear that a district judge has found a reporter in contempt for refusing to divulge confidential sources. Now, a few things need to be said here. First, it's a grand jury investigation. Grand jury proceedings are held behind closed doors. There are few restrictions on what a prosecutor can bring in. The purpose is to determine if the prosecutor has enough evidence to proceed to trial (before a "petit" jury) in the kind of proceeding we're used to seeing on Perry Mason. While it's a little disturbing to see that Ms. Miller may possibly be jailed for failure to disclose even though she has written no articles about Valerie Plame (the "out-ing" of Ms. Plame as a CIA operative is the purpose of the grand jury investigation), it's my understanding that a subpoena was issued, after other methods of obtaining information were exhausted. I feel that under those circumstances, a subpoena and a revelation (not made public) is appropriate.

What really bothers me is today's editorial in the NYT, claiming special privileges for the press. (h/t the Menagerie). Let's take a look at a couple of the Times' arguments. The article claims that Ms. Miller is going to be jailed for "doing her job". That's simply not true. She's going to be jailed for failing to respond to a court order. I'm pretty sure that defying judges is not a part of the job description for a NYT reporter (though I could be wrong).

What is the intended role of the press? Is it, in fact, to serve as a "fourth estate"? Should it be an "institution outside the government as an additional check on the three official branches" as the Times argues in its editorial? The official government is a system of checks and balances, with each institution able to check the other in various ways. But the press operates outside of that system. If we operate under the system the NYT sets forth, there are no checks on the press, and under the guise of "confidential sources", it can write whatever it wants, even furthering a crime in the process, like revealing that someone is an undercover CIA operative.

Moreover, the government is by and large responsible to the people. We elect people to office. If we don't like them, if we feel that they have done a bad job, then they don't get elected again. Judges in some jurisdictions are elected, and in some jurisdiction appointed, but in no jurisdiction are they self-selected. Who elects or appoints members of the press? No one but themselves. In that single regard, they have immediately established themselves as so seperate, so distinct from actual institutions of government, that comparison becomes laughable.

The founders did understand that the government was created by and operated by humans, and therefore was fundamentally flawed. However, the press is also created and operated by humans. And the flaws in their system have started to become more and more apparent. Indeed, they're glaring, and their bias is openly admitted.

But the part of the NYT editorial that really raised my hackles was this: "Without an enforceable promise of confidentiality, sources would quickly dry up and the press would be left largely with only official government pronouncements to report."

Tell it to the Supreme Court, bub. In Cohen v. Cowles, the court specifically addressed this very situation. Speaking of the applicability of general laws to the press, the court stated "generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.... Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source." 503 U.S. 663 at 669.

Indeed, Cohen is a case that was raised when the press (in this case the Minneapolis Star-Tribune) revealed a confidential source, breaching an implied promise of confidentiality. How enforceable is that promise looking now? The Post gets it, and writes an interesting piece - "The Press is not above the law". There is a time for holding a source confidential, but once a judge has issued a subpoena in an ongoing criminal investigation, that time has passed.