The commentary about this affair is focused on whether or not journalists should report what they know about a crime. After all, knowingly endangering a CIA agent's identity is, and should be, a serious offense. If a plumber witnesses a crime, he has to say what he saw or he goes to jail. But not journalists. Indeed, Michael Kinsley recounts an illuminating story. "A very distinguished New York Times writer" once told Kinsley that "if the Times ballet critic, heading home after assessing the day's offerings of pli?and glissades, happens to witness a murder on her way to the Times Square subway, she has a First Amendment right and obligation to refuse to testify about what she saw." Why? Because she's a journalist!
But in all of this debate, what people seem to be overlooking is that journalists aren't always analogous to witnesses to crimes. Sometimes they're accomplices. Imagine that a vindictive government official wants to embarrass an opponent by leaking his tax returns. He steals them from confidential files and meets a reporter from the Times in a back alley. The reporter publishes them. It seems to me the reporter isn't a witness, he's an accessory. If it makes it easier to understand the point, imagine instead of tax returns it's plans for a cheap nuclear weapon Al-Qaida could make.
Obviously, there's a real, longstanding tension here; journalists do need some wiggle-room. But keep in mind, the Plame case isn't about a whistleblower. It's allegedly about a government official (or officials) abusing their authority. These journalists aren't exposing wrongdoing; they're concealing it.
Indeed, the reigning talking point from the First Amendment voluptuaries is that lawyers and doctors are protected from revealing secrets, why shouldn't journalists be? Well, lawyers are not allowed to help their clients break the law, and neither are doctors. If it's against the law to ID a CIA agent, why should journalists - including Novak - be automatically off-the-hook?
What's particularly ironic is that the big media lawyers fear the courts will allow blanket shield for journalists because there's no way to exclude one-man-band Web journalists - i.e. bloggers - from the new right. And what's the point of giving the nobility a new privilege if any peasant can take advantage of it, too?
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