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MahaAtalFirstPaper 15 - 17 Apr 2009 - Main.EbenMoglen
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| | | The Freedom of the Press is Guaranteed to Those who Strive for One
By MahaAtal - 09 Mar 2009 | | | Wow... long post. Sorry I wrote so much.
-- TheodoreSmith - 9 Apr 2009
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- Here I feel as though I should have stepped in earlier, as though I could do anything to ameliorate the collision between journalists' self-image and the social situation. A collection of people who can even imagine that the difference between subpoenas the prosecutor can expect to enforce and those that will cause him immense trouble and waste of time will rest on whether someone is a "regular" or irregular blogger are not going to fare well in conversation with (even) law students.
- To begin with, I think I should agree with the chorus of legal opinion expressed already: there is no style of constitutional interpretation that can infer a privilege against disclosure of sources from the first amendment. A statutory privilege, such as is created in some states, could (but won't) pass through Congress. Such a law could do many things:
- It could create a privilege like lawyers' privilege, which you may recall is actually the client's privilege and cannot be invoked by the lawyer save on the client's behalf. Such a privilege would be actually a source's privilege rather than a journalist's privilege. That's why it isn't going to happen.
- The statute could create a rule against issuing and enforcing certain kinds of subpoenas. This would provide some particular direction to prosecutors. Such a statute is very unlikely, but it could happen. One reason it is so unlikely is that most prosecutors who are smart enough to be entrusted with the power to issue such subpoenas are politically-capable and sensible enough not to wind up jailing someone for a long period of time without making sure that absolutely no one thinks she's a hero first. Patrick Fitzgerald, however, is a prosecutor so smart and so relentless and so abusive of power in a totally "high-integrity" self-righteous way that he allowed himself to be drawn into the confrontation with Miller, was too dogged and combative to back down and too honorable in the prosecutor's code to smear her even with the truth about her, thus making it possible for her to pretend to be a hero for a little while. Making a statute to prevent Patrick Fitzgerald from confronting Judith Miller isn't really important work, and the United States Senate would rather get lots of fawning media attention and then not do it.
- it could make information gleaned from compulsory testimony by reporters inadmissible. This would allow prosecutors to deal with Fitzgerald/Miller situations, where the prosecutor needs to establish that something was said to a reporter in order to establish that somebody lied, without being able to base a prosecution on it. In Washington, of course, that would change the government information distribution structure built around deliberate leaking. Which is why the Senate is not going to do it. Journalists would hate it too, even though it would make good legal sense.
- What you need to take away from the conversation with your colleagues, however, is the point made several times in several different good ways: a special constitutional dispensation for a particular industry is not going to be read into the first amendment anymore. That was an aberration in the larger historical contour, based on the temporary, hypertrophied power of industrial distributors who came to call themselves "media." That the dean of the J-School and the members of the Newspaper Guild see very clearly and write very forcefully that Western Civilization depends on the continuation of special constitutional respect, which should now be paid to members of this intellectually and ethically demanding craft and also to Arianna Huffington, we are not in the least surprised and even less impressed.
- More could be said about the nature of the "literalism" involved in pointing out that the eighteenth century language before us uses "the Press" to mean a thing rather a class of persons. But I'll reserve it. This was an immensely interesting and useful interrogation of differences of perspective. I fear that it cannot have been pleasant for you, despite its great value on all sides, and I'd like to express gratitude.
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