In a free society, the press is not above the law

Posted: Jul 08, 2005 12:00 AM

"My heart goes out to Judy. I told her as she left the court to stay strong," a visibly shaken Matthew Cooper said yesterday referring to Judith Miller, the New York Times reporter sentenced to jail for refusing to testify about a White House source. "I think this clearly points out the need for some kind of a national shield law. There is no federal shield law, and that is why we find ourselves here today."

And away we go.

In the weeks to come, we can be sure there will be an enormous groundswell - or at least a troposphere swell - among elite journalists demanding a federal shield law, the stated purpose of which would be to protect journalists from ever exposing their confidential sources. But the ultimate effect would be to give them blanket immunity to commit a wide array of crimes.

Don't get me wrong, I think what is happening to Judith Miller is wrong. In fact, unless Patrick Fitzgerald, the special prosecutor in charge of the Plame case, knows something none of us even suspects, he's making a terrible mistake going after journalists this way.

The law he's allegedly enforcing, the Intelligence Identities Protection Act of 1982, was almost surely not broken when Valerie Plame's identity was revealed by Bob Novak two years ago. According to numerous legal experts - including Bruce Sanford and Victoria Toensing, who helped write the law - the facts don't fit the requirements of the law. Valerie Plame wasn't a covert field operative, the leaker(s) in all likelihood didn't have the required provable intent to put her life in jeopardy (and even if they did, how do you prove that?), and her life wasn't really put in jeopardy. So, again, unless there's a lot more to the story that we don't know, Fitzgerald's making a big mistake.

However, simply because he's wrong in practice doesn't mean he's wrong in principle.

Look at it this way. Imagine a situation that does conform to the conspiracy theorists' version of reality. Imagine a White House staffer deliberately leaked the identity of a CIA operative as political payback, fully knowing that it would in all likelihood result in that operative's death.

That should be against the law, right?

It should be illegal for a White House staffer to essentially put out a hit-by-proxy on any American citizen, never mind a CIA operative. That should be against the law for a butcher, a baker and a candlestick maker, too.

And it should be against the law for a journalist to do it.

And, just to be clear, it should be against the law for any of these people to help someone else do it.

That is not what those pushing federal shield laws say. They say that journalists should be immune not merely from testifying in such cases, they should be immune from prosecution - even if their reporting is what gets someone killed.

That is simply outrageous. Laws to protect the identities of mob informants, CIA agents and the like are designed to protect people from very real harm. Why should journalists get a free pass when it comes to exposing them? Particularly in the Internet age, when everyone can be a journalist, why do we want to give journalists - even bloggers - a right no one else has?

Oh, but what about lawyers, psychiatrists and the like? Aren't they exempt from some laws? Aren't they allowed to keep confidences? Yes and no. Lawyers and doctors are not permitted to enable a crime. Period. If a client tells his lawyer, "I'm going to murder so-and-so," the lawyer cannot be a party to it and must do everything he can to prevent it. Moreover, any such conversation is not privileged. The confusion here is that when I tell my shrink my friend Todd is a CIA agent, no harm has been done. When I tell a reporter and the next day it's in Newsweek, real harm has been done.

But don't tell that to the sanctimonious priesthood of the fourth estate. Just this week NPR's Daniel Schorr flatly whined that the only reason journalists don't "enjoy a first amendment privilege to protect their sources" the way doctors and lawyers can protect the confidentiality of their patients and clients is that the ungrateful American public doesn't value a free press as much as it values the services of doctors and lawyers.

This is sanctimonious hooey, and we shouldn't let the press - which has an enormous, gigantic, colossal mother-of-all-conflicts-of-interest - get away with asserting such things unchallenged. The elite press wants laws which codify their holy status in our culture, and the reporting and commentary reflects that. Forget liberal and conservative, this is the First Among Equals of media bias.

Look, it's fine to make reasonable allowances for journalists in a free society. So if the DOJ's guidelines say don't come down hard on journalists unless it's absolutely necessary, that's fine by me. But a free society is also a society of laws. And journalists cannot be above the law, even if they report they are.