We currently have nothing publicly to say about the investigation of special prosecutor Patrick J. Fitzgerald or the sideshow contrived therefrom.
Faced with confusing and conflicting speculation, supported by few uncontested facts, we pass for now on yet another bloviation. There's already plenty of that, distinguishing neither mainstream nor new media, revealing mostly the ignorance of some, the viciousness of others, the bloated egos of many.
The maelstrom distracts and detracts from a far more important issue. Before the Congress is a bill to provide a national, limited privilege for journalists to protect the confidentiality of sources. It had little chance of passing before the current mess; it has next to none now.
The arguments for or against such a national shield law should not be infected with biases shaped by passing events, by love or hate for selected news organizations or specific reporters, by any "sides" of ideological or partisan persuasions. All of those factors are temporal, caught up in a moment, a case, swirling personalities and conflicting motivations.
The Constitution is not temporal. The First Amendment is not temporal. A citizenry's need for or right to information is not temporal. The need for protection against overreaching government is neither temporal nor paranoid delusion. If the Founders had believed either, the Bill of Rights would not exist.
A journalist is little more than a conduit of information - to you. Confidential sources may be the only sources for that information. If the source is chilled, if the conduit is chilled, the information is chilled. The information may be accurate; it may not be. The information may be important; it may not be. The source may be an angel or a devil. Ditto the journalist. But the intent of the Constitution was - and to this day remains - for you to have access to that information to sort through as youwill. When that unfettered flow is impeded or denied, you are denied, and over time, on balance, you are the ultimate loser.
The Supreme Court has steadfastly declined, for more than three decades now, to clarify its one confusing, horrendously split decision on the issue of a limited privilege for journalists. Had it fulfilled its obligation, establishing a bright line rule for all to understand regardless of jurisdiction, there might now be no need for congressional action.
To review (plagiarizing our own previous writings in doing so) in 1972, in Branzburg v. Hayes, four justices (White, Burger, Blackmun, Rehnquist) held that there is no privilege for journalists. Justice Powell concurred in that case, but suggested that a qualified privilege should apply in some circumstances, which was the position of the four justices in dissent (Stewart, Douglas, Brennan, Marshall).
The qualified privilege, enunciated by Justice Stewart in his influential dissent, imposes a three-part test before journalists may be compelled to reveal confidential information to a grand jury. The information must be clearly relevant, cannot be obtained by alternative means "less destructive of First Amendment rights" and be of "compelling and overriding interest."
Subsequent to Branzburg, some lower courts have ruled with the prevailing opinion, others have ruled with the dissent, leaving a legal minefield where a clear path needs to be enunciated.
Regardless of their differences, all nine Supreme Court justices believed that journalists could ultimately be compelled to testify. That is as it should be, we believe, provided that the government reaches a high and transparent burden for necessity of the testimony. While journalists must never, ever, be agents of the government, neither may they shirk their responsibilities as citizens when information they have is essential to justice.
To many people, the press is reaching a low point of credibility and responsibility and objectivity. Fulminate against that at will, as we do, recognizing that the temporal can be changed, and is already being changed, by the criticism and by the marketplace. But to withhold one of the tools necessary to the free flow of information, the reasonable ability to protect the confidentiality of sources, that change won't mean much.
(For those who must get their fix on the current case, we strongly recommend "The White House, the CIA, and the Wilsons" by Stephen F. Hayes in The Weekly Standard. It offers perspective largely gone missing from most other reports.)
October 20, 2005