"The U.S. Supreme Court at work on the First Amendment is not a pretty sight. Freedom of speech may be a noble concept, but the actual stuff of such cases tends to be sordid." -- Lawrence J. Siskind, lawyer, 2003
For better or worse, the Supreme Court has refused to rule that the First Amendment gives reporters a right to protect their anonymous sources and other unpublished information.
So this week, while New York Times reporter Judith Miller remains in jail, Congress has begun to create a federal shield law. This is a law that would restrict lawyers who want to go rummaging around reporters' unpublished work.
There is an old saw among attorneys and lawmakers: Good facts make good law.
Sadly, Miller and the story she was working on, the leaking of a CIA employee's name, are not a set of "good facts" destined to help Congress make "good law."
The case of CIA agent Valerie Plame Wilson is fraught with convoluted facts, disputable law and politics -- perhaps sordid politics.
Presidential aide Karl Rove most certainly told some reporters that Ambassador Joe Wilson's wife works for the CIA. Did he name her? Well nobody's accusing Wilson of bigamy. Did Rove commit a crime by intentionally identifying an agent he knew was undercover? Did he do it to get even with Wilson for criticizing President Bush? Anyone can speculate. Anyone can judge another person's ethics. A crime will be difficult to prove with or without unpublished information.
It may be that the prosecutor believes another Washington source besides Rove committed the crime of "outing" Valerie Plame Wilson, but it wasn't the woman in jail. Miller never published a word about Plame, even though she was working on the story.
Beyond that, Miller herself has become an issue in the debate over a shield law.
Some in the media are see her as highly principled -- a martyr for the First Amendment.
Cast of charactersJudith Miller: New York Times reporter jailed for contempt of court for refusing to reveal the people she talked to while gathering information on the Valerie Plame Wilson case. She never published a story about the case.
Patrick Fitzgerald: Special prosecutor exploring whether a crime was committed when Plame Wilson was identified as a CIA employee. He won the contempt of court citation against Miller and has issued a subpoena against her in a Chicago case.
Joseph C. Wilson: former U.S. Ambassador who said after a trip to Niger that the Bush Administration exaggerated the possibility that Saddam Hussein tried to obtain uranium from that African nation.
Valerie Plame Wilson: wife of Joseph C. Wilson and a CIA official whose job was covert for some time. Today she works at a desk at CIA headquarters near Washington, D.C.
Karl Rove: Pres. George W. Bush's senior aide and "the architect" of Bush's political strategy.
Lewis Libby: Chief of staff for Vice President Dick Cheney and a source who spoke to Matthew Cooper.
Robert Novak: Respected Washington political columnist, first identified Plame Wilson was a CIA employee, on July 14, 2003. He has refused to say whether he has testified to the grand jury.
Matthew Cooper: Time magazine reporter who identified Rove and Libby as sources of information about Plame Wilson after they released him from a promise of anonymity. Much of what is know about the case comes from memos he wrote that have been turned over to a grand jury and reported by other publications using anonymous sources.
Source: Associated Press
Others are incensed by her reporting about weapons of mass destruction prior to the launching of the Iraq War. These critics see Miller as a shill for the Bush administration. Some jump to the conclusion that the source she is protecting is Rove. From there they make a less unlikely judgment: The First Amendment was designed to protect the people from government officials, not to allow the government to mislead the public. So, they say, Rove doesn't deserve protection of a shield law.
That's nonsense! And it's all a distraction!
No matter what you think of Miller and her career, she is standing up for some very important principles, ones we think Congress should enshrine in the law:
• If prosecutors routinely compel reporters to give up their sources, those sources and the information they divulge will be lost to the public.
• Equally chilling is the prospect of the press becoming a de facto investigator for the government.
Our Constitution sets up the uniquely American "separation of powers." These separations include the three branches of government, civilian control of the military, states rights, independent police powers and a host of individual rights -- among them, freedom of the press. These separate powers guarantee inefficiency and political combat in our system of government. But they also assure no one institution holds so much power that it rises above the law and beyond accountability to the people.
The U.S. Senate Judiciary Committee was scheduled Wednesday to take up a shield law bill -- something 49 states and the District of Columbia have already done. Some of these laws, like California's, are very broad. Some afford reporters little protection.
Occasionally sources and reporters are pillars of virtue; usually they are just frail humans sparring at cross purposes. It's up to reporters to sort the useful information from useless. Let's hope the fog of politics doesn't obscure the enduring truth that a free press serves a free people.
-- Lodi News-Sentinel