I don't think that we should gloat about Judy Miller. She's done her job, but she's not part of the hard core of Bush loyalists and Republican hacks in the media. She's dispensible. (Trivia: her first DC job was with "The Progressive". She married the NYRB's Jason Epstein. Both neoconified at some point and are hardline Likud now.)
But the reinforced precedent will allow Gonzales or whoever to go after any reporter who either knows anything that the Feds want to know, OR who simply is doing reporting on some touchy issue that the feds don't like.
Yeah, I certainly didn't mean to be gloating about Miller or Cooper doing time. It's more puzzlement about how Novak, i.e., the guy who published the information, seems, so far, to have suffered no repercussions, while people who did some research but didn't publish anything are headed to confinement. Discussion here favors Novak's cooperation as the explantion.
This has been my question for lo these many months. Not only why is Bob Novak not facing jail time like the rest of them, but why isn't everyone asking this question relentlessly on every news channel and editorial page?
The right of journalists to maintain source anonymity has always seemed a vexed issue to me. It will probably surprise no one here that I do not consider this right to be absolute. This may be enough to provoke John Emerson's Olympian distain, but I wonder how he and others view, for example, the journalist's rght to preserve anonymous sourcing when this in effect shields a criminal. Still all the way pro?
When I was a kid I read a Reader's Digest treasury of Jokes and that was one of two jokes that stuck with me. The other joke was about the modest man who bragged about himself because he was under oath.
baa,
Is the criminal about to blow up a city with a nuclear bomb, or knows how to get a nuclear bomb, or some type of WMD, or knows some one who knows about WMDs, or is just some random guy pulled of the street. Because if it is one of those things, anonymous sourcing is totally inappropriate. Unless I am misunderstanding and anonymous sourcing is painful in some way.
I don't think anyone thinks anything is an absolute right. It's a matter of tolerances, and I think the tolerance should be way in favor of an unfetterred press. There might be ways to whittle away at that right, perhaps by inquiring into intent or something like that, but the general right should be very, very broad.
I'm a lot more afraid of the enormous power of government when captured by an unfriendly group than I am of any criminal.
Drive by: Absolutely protected, as long as the information was provided to the journalist as a journalist, and would not otherwise have been provided. The privilege belongs to the journalist, not the killer. So, yeah, ogged's a journalist, if you want.
You'd want an out to the extent that ogged was functioning in a different capacity as well. If he was both a blogger-journalist and the book-keeper for Murder, Inc., you wouldn't let the privilege of one be used to protect the other role from inspection.
I'm not sure what you think the loss is here. If someone told ogged they murdered someone, and ogged didn't want to turn that person in, he just lie or say he couldn't remember or whatever. The case you worry about is something like industrial espionage.
I have no real opinion on the far borders of journalistic privilege, but this case isn't near them.
Imagine a journalist covering a conference where Earth First! showed up, or ELF. The journalist might be questioned about every group there for that reason.
Not a hypothetical case, stuff like that has happened. Anti-environmentalists and internal security cops do not make fine distinctions, and quite ordinary groups are often thought of as criminal.
When governments clamp down on the press, they do it to maintain power and keep people in the dark. Without a free press bad things happen. I would give the press some slack.
The press is better suited to making these types of decisions than the government. Both the press and government can fuck-up. That means that in some cases the press will be fucking up when the government isn't.
But the government has bias to suppress dissent, and the press really only has a bias in sucking up to sources. The press doesn't have incentives to promote criminal activity, let alone driveby shootings. The government, like any powerful institution, has incentives to get more power.
When I read the article this morning, the issue of journalistic privledge seemed to be subsumed to an issue of powers. The ruling is that the power of a grand jury trumps the right of journalist privledge, and the specific issues at stake are otherwise irrelevant. I'll have to read the case verdict and see how this power issue takes into account journalists' privledge of confidentiality.
Mr. Fitzgerald disclosed that, except for his efforts to compel the reporters' testimony, his investigation has been "for all practical purposes complete" since October.
That seems like a long time spent coercing these reporters. Does this mean he expecters their testimony to be very important to his case? How so? Unfogged Legal Analyst Team?
Holy crud! You are correct, Fontana, that's an atrocity.
On the larger issue: I would allow no protection of sources in a drive by. I would likewise need to be convinced of the harm, if in the course of investigating a crime, a reporter needed to spill details on an environmental conference (or gun show) they attended.
If I go to a gun show and meet with forty people, and later one of the attendees advocates blowing up the Washington federal building, I would expect the government to ask me some pointed questions. I don't see why the possession of a press pass, or the fact that I plan to make money from these conversations should shield me from the usual machinery of justice. Yeah, the government is heap bad, etc., and we should make their lives difficult in every possible case. If, however, someone has in fact outed a covert operative (and don't I recall great concern -- and not on the right! -- about this being the case in the Plame case), it seems like they need to be brought to book. If a journalist or anyone else facilitates this, they'redoing bad stuff.
This really, really, isn't my field. As far as I know, though, there isn't much of a journalist's privilege. There certainly wasn't one at common law, and I don't think (but could certainly be wrong) that statutory journalist privileges exist much of anyplace in the US.
What there has always been is (a) a strong ethical/practical committment on the part of journalists to protecting their sources, so that they are willing to be jailed rather than speak, and (b) a spotty, off-and-on recognition of this fact from the judiciary, such that they are reluctant to jail reporters for protecting sources. Not that they can't, but that there's a discretionary preference for not doing so.
Defining a journalist's privilege is really pretty tricky -- who is covered by it? Doctors and lawyers are licenced, which doesn't give us any special moral status, but does make us clearly identifiably. Jeff Gannon, on the other hand is a journalist in some sense -- at that point doesn't it encompass the whole world, or at least the world with the forethought to start a blog before wanting to exercise the privilege?
1. Baa, you've got to be kidding. What you're talking about only serves to shut down the flow of information. Criminals can't count on reporters to protect them - no more news about the mechanics of the problem of crime. Administration leakers can't count on their anonymity - welcome to the world of secret government actions unchecked by anything but the total decency of the people up and down the hierarchy. I'm not the least bit clear why sociologists investigating criminal activities can't be dragged before a grand jury and forced to reveal who did what when.
The value of reporters is that they report - they hasten the flow of information. This seems like the worst thing to cut off. I remain unclear about what informtion is so harmful to US interests (esp. now) that we ought to get rid of our general cultural tendency towards more sunlight.
2. LB, if L&O is to be believed, I think that NY has a reporter's shield law of some sort. And if we can't trust L&O, all really is lost.
So I should have googled before shooting my mouth off. 31 states, including NY, have such laws. There isn't a federal privilege, though, as far as I'm aware.
If I go to a gun show and meet with forty people, and later one of the attendees advocates blowing up the Washington federal building, I would expect the government to ask me some pointed questions.
What I was talking about was fishing expeditions, a well-known phrase in the biz which I'm sure you're unaware of. In liberal societies (i.e., non-communist, non-Saudi societies) there are always limitations on the power of the state to force testimony. Police always try to stretch the rules and abuse their powers.
I don't see why the possession of a press pass, or the fact that I plan to make money from these conversations should shield me from the usual machinery of justice.
You don't see well, as you've shown before. Apparently, you are once again reacting to long-standing principles as though they had just been invented right before your eyes, subject to your own personal approval. "Olympian disdain" is too mild a term, really, for my reaction to the kind of shit you say.
Also, "making money" is OK! Red herring! (Jesus, are you a Communist or something? Making money is suspect, police powers are not....)
John, we're the friendly cock-joke occasionally political blog. baa, unlike most of the rest of us, will actually modify his position in response to convincing arguments.
you are once again reacting to long-standing principles as though they had just been invented right before your eyes
Without taking up the issue of the etiquette here (as in 24), I have a question: what's it called when you have to argue everything from scratch? There must be some clever philosophical term for this. Scholasticism?
I don't think that we should gloat about Judy Miller. She's done her job, but she's not part of the hard core of Bush loyalists and Republican hacks in the media. She's dispensible. (Trivia: her first DC job was with "The Progressive". She married the NYRB's Jason Epstein. Both neoconified at some point and are hardline Likud now.)
But the reinforced precedent will allow Gonzales or whoever to go after any reporter who either knows anything that the Feds want to know, OR who simply is doing reporting on some touchy issue that the feds don't like.
Posted by John Emerson | Link to this comment | 06-27-05 10:05 AM
cue farber...
Did Labs gloat?
Posted by ogged | Link to this comment | 06-27-05 10:06 AM
Yeah, I certainly didn't mean to be gloating about Miller or Cooper doing time. It's more puzzlement about how Novak, i.e., the guy who published the information, seems, so far, to have suffered no repercussions, while people who did some research but didn't publish anything are headed to confinement. Discussion here favors Novak's cooperation as the explantion.
Posted by FL | Link to this comment | 06-27-05 10:09 AM
This has been my question for lo these many months. Not only why is Bob Novak not facing jail time like the rest of them, but why isn't everyone asking this question relentlessly on every news channel and editorial page?
Now I sound naive, I guess!
Posted by Claudia | Link to this comment | 06-27-05 10:22 AM
There is no way she ever does time. At worst, she'll roll.
Posted by SomeCallMeTim | Link to this comment | 06-27-05 10:23 AM
Atrios gloated. Sorry, Labs. No point commenting over there, though.
"Just spank the kid sitting next to him, that's punishment enough".
Posted by John Emerson | Link to this comment | 06-27-05 10:28 AM
Hey there, friends of freedom!
The right of journalists to maintain source anonymity has always seemed a vexed issue to me. It will probably surprise no one here that I do not consider this right to be absolute. This may be enough to provoke John Emerson's Olympian distain, but I wonder how he and others view, for example, the journalist's rght to preserve anonymous sourcing when this in effect shields a criminal. Still all the way pro?
Posted by baa | Link to this comment | 06-27-05 11:23 AM
John,
When I was a kid I read a Reader's Digest treasury of Jokes and that was one of two jokes that stuck with me. The other joke was about the modest man who bragged about himself because he was under oath.
baa,
Is the criminal about to blow up a city with a nuclear bomb, or knows how to get a nuclear bomb, or some type of WMD, or knows some one who knows about WMDs, or is just some random guy pulled of the street. Because if it is one of those things, anonymous sourcing is totally inappropriate. Unless I am misunderstanding and anonymous sourcing is painful in some way.
Posted by Joe O | Link to this comment | 06-27-05 11:30 AM
baa -
I don't think anyone thinks anything is an absolute right. It's a matter of tolerances, and I think the tolerance should be way in favor of an unfetterred press. There might be ways to whittle away at that right, perhaps by inquiring into intent or something like that, but the general right should be very, very broad.
I'm a lot more afraid of the enormous power of government when captured by an unfriendly group than I am of any criminal.
Posted by SomeCallMeTim | Link to this comment | 06-27-05 11:37 AM
How about: source X admits to killing someone in a drive-by shooting?
Second question: is ogged (or Fontana) a journalist? When does Unf get his right to hide info from the government?
Posted by baa | Link to this comment | 06-27-05 11:51 AM
No, but I am a pedant. Your apostrophe abuse: shameful!
Posted by FL | Link to this comment | 06-27-05 11:56 AM
Drive by: Absolutely protected, as long as the information was provided to the journalist as a journalist, and would not otherwise have been provided. The privilege belongs to the journalist, not the killer. So, yeah, ogged's a journalist, if you want.
You'd want an out to the extent that ogged was functioning in a different capacity as well. If he was both a blogger-journalist and the book-keeper for Murder, Inc., you wouldn't let the privilege of one be used to protect the other role from inspection.
I'm not sure what you think the loss is here. If someone told ogged they murdered someone, and ogged didn't want to turn that person in, he just lie or say he couldn't remember or whatever. The case you worry about is something like industrial espionage.
Posted by SomeCallMeTim | Link to this comment | 06-27-05 11:58 AM
I have no real opinion on the far borders of journalistic privilege, but this case isn't near them.
Imagine a journalist covering a conference where Earth First! showed up, or ELF. The journalist might be questioned about every group there for that reason.
Not a hypothetical case, stuff like that has happened. Anti-environmentalists and internal security cops do not make fine distinctions, and quite ordinary groups are often thought of as criminal.
Posted by John Emerson | Link to this comment | 06-27-05 12:07 PM
When governments clamp down on the press, they do it to maintain power and keep people in the dark. Without a free press bad things happen. I would give the press some slack.
The press is better suited to making these types of decisions than the government. Both the press and government can fuck-up. That means that in some cases the press will be fucking up when the government isn't.
But the government has bias to suppress dissent, and the press really only has a bias in sucking up to sources. The press doesn't have incentives to promote criminal activity, let alone driveby shootings. The government, like any powerful institution, has incentives to get more power.
Posted by Joe O | Link to this comment | 06-27-05 12:14 PM
When I read the article this morning, the issue of journalistic privledge seemed to be subsumed to an issue of powers. The ruling is that the power of a grand jury trumps the right of journalist privledge, and the specific issues at stake are otherwise irrelevant. I'll have to read the case verdict and see how this power issue takes into account journalists' privledge of confidentiality.
Posted by Michael | Link to this comment | 06-27-05 12:17 PM
This caught my eye:
Mr. Fitzgerald disclosed that, except for his efforts to compel the reporters' testimony, his investigation has been "for all practical purposes complete" since October.
That seems like a long time spent coercing these reporters. Does this mean he expecters their testimony to be very important to his case? How so? Unfogged Legal Analyst Team?
Posted by Michael | Link to this comment | 06-27-05 12:33 PM
Holy crud! You are correct, Fontana, that's an atrocity.
On the larger issue: I would allow no protection of sources in a drive by. I would likewise need to be convinced of the harm, if in the course of investigating a crime, a reporter needed to spill details on an environmental conference (or gun show) they attended.
If I go to a gun show and meet with forty people, and later one of the attendees advocates blowing up the Washington federal building, I would expect the government to ask me some pointed questions. I don't see why the possession of a press pass, or the fact that I plan to make money from these conversations should shield me from the usual machinery of justice. Yeah, the government is heap bad, etc., and we should make their lives difficult in every possible case. If, however, someone has in fact outed a covert operative (and don't I recall great concern -- and not on the right! -- about this being the case in the Plame case), it seems like they need to be brought to book. If a journalist or anyone else facilitates this, they'redoing bad stuff.
Posted by baa | Link to this comment | 06-27-05 1:12 PM
This really, really, isn't my field. As far as I know, though, there isn't much of a journalist's privilege. There certainly wasn't one at common law, and I don't think (but could certainly be wrong) that statutory journalist privileges exist much of anyplace in the US.
What there has always been is (a) a strong ethical/practical committment on the part of journalists to protecting their sources, so that they are willing to be jailed rather than speak, and (b) a spotty, off-and-on recognition of this fact from the judiciary, such that they are reluctant to jail reporters for protecting sources. Not that they can't, but that there's a discretionary preference for not doing so.
Defining a journalist's privilege is really pretty tricky -- who is covered by it? Doctors and lawyers are licenced, which doesn't give us any special moral status, but does make us clearly identifiably. Jeff Gannon, on the other hand is a journalist in some sense -- at that point doesn't it encompass the whole world, or at least the world with the forethought to start a blog before wanting to exercise the privilege?
Posted by LizardBreath | Link to this comment | 06-27-05 1:39 PM
"clearly identifiable"
Posted by LizardBreath | Link to this comment | 06-27-05 1:40 PM
1. Baa, you've got to be kidding. What you're talking about only serves to shut down the flow of information. Criminals can't count on reporters to protect them - no more news about the mechanics of the problem of crime. Administration leakers can't count on their anonymity - welcome to the world of secret government actions unchecked by anything but the total decency of the people up and down the hierarchy. I'm not the least bit clear why sociologists investigating criminal activities can't be dragged before a grand jury and forced to reveal who did what when.
The value of reporters is that they report - they hasten the flow of information. This seems like the worst thing to cut off. I remain unclear about what informtion is so harmful to US interests (esp. now) that we ought to get rid of our general cultural tendency towards more sunlight.
2. LB, if L&O is to be believed, I think that NY has a reporter's shield law of some sort. And if we can't trust L&O, all really is lost.
Posted by SomeCallMeTim | Link to this comment | 06-27-05 1:49 PM
Could be -- this is way far away from anything I do.
Posted by LizardBreath | Link to this comment | 06-27-05 1:51 PM
So I should have googled before shooting my mouth off. 31 states, including NY, have such laws. There isn't a federal privilege, though, as far as I'm aware.
Posted by LizardBreath | Link to this comment | 06-27-05 1:54 PM
If I go to a gun show and meet with forty people, and later one of the attendees advocates blowing up the Washington federal building, I would expect the government to ask me some pointed questions.
What I was talking about was fishing expeditions, a well-known phrase in the biz which I'm sure you're unaware of. In liberal societies (i.e., non-communist, non-Saudi societies) there are always limitations on the power of the state to force testimony. Police always try to stretch the rules and abuse their powers.
I don't see why the possession of a press pass, or the fact that I plan to make money from these conversations should shield me from the usual machinery of justice.
You don't see well, as you've shown before. Apparently, you are once again reacting to long-standing principles as though they had just been invented right before your eyes, subject to your own personal approval. "Olympian disdain" is too mild a term, really, for my reaction to the kind of shit you say.
Also, "making money" is OK! Red herring! (Jesus, are you a Communist or something? Making money is suspect, police powers are not....)
Posted by John Emerson | Link to this comment | 06-27-05 3:46 PM
John, we're the friendly cock-joke occasionally political blog. baa, unlike most of the rest of us, will actually modify his position in response to convincing arguments.
Posted by ogged | Link to this comment | 06-27-05 3:52 PM
But, to be fair to JE, it's not like there's no evidence that baa is pure concentrated evil. He did support the Celtics through the Bird years.
Posted by SomeCallMeTim | Link to this comment | 06-27-05 4:00 PM
Yes, but he's a Bostonian. If he lived elsewhere and supported the Bird Celtics, he wouldn't be allowed to comment here.
Posted by ogged | Link to this comment | 06-27-05 4:02 PM
But he's expressed sympathy for the Yankees. I think we must conclude that he loves evil and hates good.
Posted by Matt Weiner | Link to this comment | 06-27-05 4:04 PM
Well, even if he is from Boston, we can at least still use his Bird-support as proof that he hates the Black Man, can't we?
Posted by SomeCallMeTim | Link to this comment | 06-27-05 4:04 PM
you are once again reacting to long-standing principles as though they had just been invented right before your eyes
Without taking up the issue of the etiquette here (as in 24), I have a question: what's it called when you have to argue everything from scratch? There must be some clever philosophical term for this. Scholasticism?
Posted by slolernr | Link to this comment | 06-27-05 4:04 PM
philosophy
Posted by Michael | Link to this comment | 06-27-05 5:08 PM
Ouch!
Posted by Matt Weiner | Link to this comment | 06-27-05 5:10 PM
pwned!!!11!!!1!, I concede. And I suppose there's no point in saying, that isn't what I meant, at all.
Posted by slolernr | Link to this comment | 06-28-05 11:40 AM
Reese, most people lurk for awhile here before posting. I'm just saying.
Posted by text | Link to this comment | 01-19-06 6:34 PM