Jailing Judith Miller: Why the Media Shouldn't Be So Quick to Defend Her, And Why a Number of These Defenses Are Troubling

This past week, a federal judge sent New York Times reporter Judith Miller to jail, holding her in contempt of court for refusing to testify in response to a grand jury subpoena.

Miller's firm stand has been lauded by the vast majority of her media colleagues. Over one hundred newspaper articles, largely op-eds, have been written in the past month in support of Miller. In contrast, you'll be hard pressed to find more than a dozen of her colleagues criticizing her stand.

This may be the greatest example of journalistic bias in recent history - for there is a strong argument against Miller's view, but it's rarely voiced. Moreover, some of the more prominent arguments presented in the past month are misplaced, if not outright wrong - as I will explain.

The Grand Jury, the Subpoena, and the Subsequent Legal Proceedings

The grand jury - convened by Special Counsel Patrick Fitzgerald - is investigating the disclosure of CIA operative Valerie Plame's identity, in possible violation of the 1982 Intelligence Identities Protection Act. The information was originally disclosed to syndicated columnist Robert Novak, who attributed it to "two senior Bush administration officials."

Miller investigated the leak after it occurred, but she never published an article on the subject. It seems, however, that in the course of her investigation, she came across information deemed valuable to the grand jury proceedings - perhaps even the name of the leaker, or leakers.

When the subpoena was issued, in 2004, Miller unsuccessfully moved to quash it. Then she appealed her case all the way to the Supreme Court, losing every step of the way. (The Court declined to grant review).

With her appeals exhausted, Judge Thomas F. Hogan of the U.S. District Court in Washington D.C. held a hearing on July 6 to determine Miller's fate.

There, Miller herself argued to the court, "If journalists cannot be trusted to guarantee confidentiality, then journalists cannot function and there cannot be a free press." She called her resistance to turning over her sources "civil disobedience."

Media Defenses of Miller Are Often Based on Inaccuracies or Distortions

Principles are no doubt important to a democracy. But one of those vital principles is that no one is above the rule of law - no one! And in any properly functioning democracy, judges, not private individuals, have the final word on what the law entails.

Judith Miller's defiance of a federal subpoena in a criminal investigation placed the execution of justice on a collision course with the freedom of the press - with the latter on the losing end.

Yet, as noted above, the media has been virtually univocal in its defense of Miller, and this defense, worse, has been based on a number of problematic rationales, which I will detail.

The Law Relating to Miller's Case Is Well-Settled

The media has suggested the issue of whether journalists can resist grand jury subpoenas in circumstances like Miller's is still controversial - a live issue. That's not the case.

In fact, there is a long history of case law requiring reporters to testify before grand juries, even if such appearances would violate assurances of confidence to sources. And one decision, in particular, is directly on point.

In 1972, in Branzburg v. Hayes, the Supreme Court was asked to review three consolidated cases involving reporters who had witnessed alleged drug-related activities in Kentucky and civil disorder activities involving the Black Panthers in Massachusetts and California. The Court's response was unequivocal:

We are asked to create another [privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.

The majority offered some compelling reasons, as well, for reaching this conclusion:

Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.

In the end, the majority reasoned, the interests of the public trump those of the press:

Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.

Judge Hogan drew heavily on Branzburg to reject Miller's argument that she should be entitled to a First Amendment privilege that would excuse her appearance before the grand jury.

The D.C. Circuit Court of Appeals relied heavily on Branzburg, too, stressing that the leak at issue seems to have also been a crime: "On the record before us, there is at least sufficient allegation to warrant grand jury inquiry that one or both journalists received information concerning the identity of a covert operative of the United States from government employees acting in violation of the law by making the disclosure." Accordingly, the appellate court cited Branzburg, and noted that "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter."

While it is always perilous to interpret the meaning of a denial of review, the Supreme Court may well have turned Miller down for the simple reason that it deems its prior ruling in Branzburg to be good law, entitled to stare decisis.

The Law Is Also Settled That the Research/Publication Distinction Is Not Significant

Even the Supreme Court's refusal to grant review did not stop Miller from a last ditch effort to avoid a contempt sanction. And once again, the media was less than accurate about the state of the law.

Miller's advocates tried to argue that she should be exempted from testifying before the grand jury because she only researched the story, but never actually published an article. But this argument was made earlier by one of the Branzburg appellants. It did not work then. And it did not work now.

Rightly so. Could you imagine a policeman avoiding testimony relating to a purported crime on grounds that, while he investigated a possible illegal activity, he ultimately decided a police report was not necessary?

Branzburg has been on the books for over three decades now. Journalists know its implications. Other journalists have been held in contempt for refusing to testify before a grand jury. Of recent notoriety, the list includes WJAR-TV reporter Jim Taricani, who refused to reveal the source who provided him with an FBI videotape of a Providence, R.I., official taking a bribe; and Associated Press reporter H. Josef Hebert, who refused to reveal his sources on stories related to the espionage investigation of Los Alamos nuclear scientist Wen Ho Lee.

Judith Miller offers no convincing reason why she should be entitled to a level of protection higher than that applied to her colleagues who once found themselves in the same boat, and who were forced to face the same music.

While Privileges Exist in the Law, No One Is Above the Law: Not Even the President

In addition to insisting on a First Amendment privilege, Miller argued for a common law privilege for reporters who seek to protect confidential sources - and an absolute privilege at that.

If Miller were right - and she's not - she would be entitled to a level of protection higher than that afforded to the President of the United States.

President Nixon, during the Watergate investigation, insisted that he could not be forced to turn over Oval Office tape recordings to a grand jury on the grounds that he was entitled to an absolute privilege of executive immunity.

But the Supreme Court, in United States v. Nixon, definitively rejected such an absolute shield from criminal investigation: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III."

Indeed, the high court went even further - restricting even a qualified privilege for the President in criminal investigations:

The allowance of the [qualified] privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. . . . Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

Drawing on this reasoning, the unanimous Court held that "generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

If the President is entitled to the highest deference in the land in court proceedings, as the Supreme Court recently suggested in Cheney v. District Court, and he must comply with grand jury subpoenas, doesn't it follow that Judith Miller should be afforded no greater protection?

Miller Is Not Acting as the "Watchdog of Government" Here: Rather Than Helping to Disclose Possible Crimes, She Is Helping to Conceal Them

Another argument being advanced in support of Miller's stand is that enforcement of the subpoena in her case undermines the media's watchdog function.

Of course, it's true that the press is often referred to as the Fourth Estate or the Fourth Branch of Government, because it monitors government activity, and often is at the forefront of exposing government corruption or misbehavior. And it's undisputable that the news media play a vital watchdog function in our democracy. The legacy of Watergate is to make sure that every introductory civics textbook imparts this lesson.

This watchdog function is not at issue in the Judith Miller case. But you wouldn't know it from listening to media commentary.

For instance, in discussing Miller on MSNBC's Hardball, television news reporter Jim Taricani argued that "when we can't do our jobs totally and freely - and sometimes that entails using confidential sources . . . the public loses." He added, "We are supposed to be the watchdog for the people. We can't be much of a watchdog if we can't do our job."

But in what sense did Judith Miller act as a watchdog? She never published an article. And there is no indication that she was researching the matter for the purpose of identifying the leaker (which arguably would be in the public interest of exposing inappropriate government activity).

Judge Hogan, speaking from the bench at Miller's sentencing hearing, made a similar point: "This is not a case of a whistle-blower [revealing] dangers at a nuclear power plant. It's a case in which the information she was given and her potential use of it was a crime. . . . This is very different than a whistle-blower outing government misconduct."

By refusing to testify, Miller is not only failing to assist the grand jury in its efforts to expose possible illegal activity, she is also shielding those who may have violated the law.

And this flies in the face of the media's duty to be society's watchdog - rather than serving that duty.

That There Will Be a Chilling Effect on Journalism as a Result of This Case Is a Myth: History Teaches Us That Much

Finally, a related argument is the one raised by Miller's executive editor at the New York Times, Bill Keller. After Miller was led away to serve her sentence in a federal penitentiary, Keller made a brief press statement, suggesting that the incarceration of Miller would have a chilling effect on journalism: "It's chilling because it's likely to serve future cover-ups of information that happens in the recesses of government and other powerful institutions."

Similarly, Linda Foley, the President of the Newspaper Guild, told CNN that sanctioning Miller for failing to give up her source "has a very, very chilling effect on free press and on journalism, and particularly on investigative journalism."

Or, as media lawyer Charles Tobin told the Washington Post, "It's the mother of all chilling effects."

It's time to chill out on the "chilling effect" clichés. History teaches us that people do not stop speaking to reporters in confidence just because once in every several hundred thousand (if not million) stories, a journalist is asked to identify his source in a court proceeding.

Even the Supreme Court in Branzburg recognized this: "Reliance by the press on confidential informants does not mean that all such sources will in fact dry up because of the later possible appearance of the newsman before a grand jury."

After the decision in Branzburg was handed down, though, journalists decried the undermining of their profession. One such article, written by current Fox News Channel anchor Brit Hume, appeared in the New York Times Magazine. In reviewing the Supreme Court's ruling and its likely implications, Hume suggested that some journalists might abandon confidential source reporting in certain instances.

What was the title of this analysis? You guessed it: "A Chilling Effect on the Press."

But as any student of politics knows, investigative journalism based on confidential sources reached new heights in the years following the Branzburg ruling, highlighted by Bob Woodward and Carl Bernstein's use of "Deep Throat" to help uncover the Watergate scandal.

Rather than cooling down, leaking in Washington heated up. Today, there are dozens of leaks and background briefings in Washington occurring daily.

The jailing of Miller will in no way affect "politics as usual."

The Ultimate Lesson of the Miller Contempt Proceeding: Journalism Is Not Above the Law

If the Miller controversy teaches us anything, it is that journalists must disabuse themselves of the notion that their profession is above the law - at least in criminal investigations.

As part of this process of coming to terms with the post-Branzburg world, an appropriate first step would be for reporters to redefine the rules of confidentiality in sourcing. There must be a new standard: confidentiality will be maintained to the maximum extent permitted by the law.

When reporters tell a confidential source involved in criminal activity that they will be shielded from disclosure at any cost, they not only do a disservice to the source and to the journalism profession, but they also undercut the public interest.

In the Valerie Plame matter, a CIA agent had her career destroyed and, in the process, America's national security was arguably undermined. While sticking to your principles is generally a noble endeavor, there is only blood to be spilled when you choose to fall on the sword to protect those who expose intelligence operatives.

We need to focus less on excusing the Judith Millers of the world and focus more on safeguarding the Valerie Plames.