Judith Miller’s Crocodile Tears
Here’s a question for Josh and Kevin. Putting aside the details of the crime that Judith Miller helped cover-up and my personal opinion of that political demon Karl Rove, why does Miller deserve any sympathy, much less the legal cover that she’d gain under a hypothetical federal shield law? Since, as she’s fond of reminding people, Judith Miller didn’t write a story about the Plame outing, her claims of privilege raise not out of any actual reporting, but rather her status as a reporter. Isn’t there a line to be drawn between allowing journalists the right to protect their sources and giving someone full-blown immunity from legal problems due to their occupation?
And people wonder why I call this an “online magazine”….
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I’m curious about your views on confidentiality…would you also repeal doctor/patient confidentiality? How is this different to you?
Comment by Kyle — July 6, 2005 @ 11:59 pm
The difference here is this:
If someone came to doctor, and said: “I broke my arm while breaking into the first national bank.” The doctor can’t report this. Because this is his patient.
However, if a doctor knew that some guy (who was not his patient, did not tell the doctor in a medical setting, and did not receive any medical care whatsoever from the doctor) had broken his arm in while robbing a bank, he could not avoid testfying under doctor/patient confidentiality rules merely because he was a doctor. There had to be a patient relationship, which in this case, it lacks.
Judith Miller did not write a story about Valerie Plame. She wasn’t working on a story about Valerie Plame. There is nothing she can produce that shows that she was planning on writing anything about Valerie Plame. Therefore, she has no sources to protect under journalistic privelege. Just because someone tells a journalist something doesn’t make them a source. The journalist has to actually attempt to do something with the info – even if it is just to record it as part of a larger investigation – to make someone a source.
Otherwise, journalists would be completely exempt from testifying in any case at all merely due to their profession.
Comment by Marissa — July 7, 2005 @ 9:08 am
But why should the mere act of investigating grant that privilege? That has the same effect of giving a journalist privilege by mere virtue of their profession because, like Ken Starr going fishing, a journalist’s investigation could seemingly limitlessly expand and grow, like Andre the Giant as a teenager. When you deal with a doctor, you have an expectation that the information exchanged between you and the doctor will remain confined to those two parties. That information is then privileged. When you talk to a reporter, that expectation is not there. The “privilege” then is simply that your identity will not be revealed, which is a reasonable enough expectation. When the courts demand that information, though, the reporter then should either give it up or refuse and accept whatever consequences follow. Sources are trying to protect their own security (professional or personal) by going “anonymous,” and they should respect the journalists’ choices for protecting themselves if they’ve fought the good fight as Cooper and Miller have (even if they would respect it more if the journalists went to jail).
Comment by E-Rock — July 7, 2005 @ 9:38 am
Actually, there is no FEDERAL doctor-patient privilege. Most states have that privilege (much like most states have some sort of reporter’s privilege).
The type of privilege Miller is arguing for (and lost her argument for) is one that is broader than any other privilege, including the attorney-client privilege. The argument is similar to that in the situtation where the attorney can not reveal confidences told to him by someone who either thinks there is an atty-client relationship or intends to form one. (That is, conversations during an initial consultation are covered.) Thus, if the informant intends to be a confidential informant or thinks that there is an assurance of confidentiality, then the reporter should not divulge the source.
Attorney-client (and psychotherapist-patient, which is federally recognized) privilege does NOT cover the client’s identity. Nor does it cover communication where the client is committing a crime or fraud with the attorney’s help.
Revealing a CIA agent’s identity is a federal crime. Telling it to a reporter in an attempt to get a story published is using that reporter to commit a crime.
Even if there was a federal reporter privilege that reached the extent of the most protective privileges, Miller would have to reveal her informant’s identity. She might not have to reveal what she was told, but even that might be required if provision of that information was part of a crime or fraud.
Comment by Kristan — July 7, 2005 @ 4:38 pm