Friday, October 08, 2004

It would be my privilege

This Jack Shafer piece reads more like one of Slate's Explainer columns than a Press Box article. But that's a good thing, the best of both worlds.

Shafer writes about Judith Miller's rebirth from press pariah (bad reporting on Iraqi weapons) to media martyr (willing to go to jail rather than reveal CIA leak sources).

But he also delves into the history of journalists' privilege -- how it doesn't really exist under federal law. The precedent-setting case, Branzburg v. Hayes, actually found that there is no special privilege for reporters under the First Amendment.
But even though Branzburg found no special privileges for journalists, most prosecutors and courts have continued to extend various privileges to reporters on a daily basis. As First Amendment scholar Eugene Volokh writes in his blog, the courts have mostly followed Justice Lewis Powell's concurrence in Branzburg to carve out a qualified privilege for reporters to keep their sources confidential, but that privilege can be "overcome by a showing of sufficient government need." Volokh notes that "it's a bit odd" for lower courts to follow Powell's concurrence rather than the majority opinion, but "that's what the courts have done."
Shafer also answers a question that has been running through my mind: What about Novak's subpoena?
The most mysterious aspect of the Plame investigation is Novak, who has refused to say whether he's been subpoenaed. If he's been subpoenaed and talked, shouldn't prosecutor Fitzgerald be signaling "game over"? Or, if he's been subpoenaed and refused to speak, shouldn't Judge Hogan want to jail him first? Or are is the prosecutor squeezing the tube down to Novak and saving his subpoena for last?
Fascinating all around.


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