GETS? HE WAS BORN THAT WAY:

First Amendment Chicken Little: E.J. Dionne gets hysterical. (Jack Shafer, Dec. 17, 2004, Slate)

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..

The problem with unnamed sources, in particular, is that we readers have no way to judge their agendas, and they always have them. Mr. Schafer was on NPR yesterday and offered his own standard of good journalism, one which would avoid such sources and borders on being truly objective: a story should be duplicable by a succeeding reporter. In other words, you should provide information in such a way that whoever comes after you, by following that info, would likely reach the same conclusions. Using secret sources obviously makes that unlikely and therefore casts doubt on the reliability of the original story. There's no benefit to society in protecting inherently unreliable journalism.

Posted by Orrin Judd at December 18, 2004 1:09 PM