I discuss and supply some interesting links related to the federal appeals court decision to reject two reporters' claim to privilege from testifying in connection to the Plame Case here. An immediate inclination that should be resisted is to laugh out loud at the fact that Judith Miller is involved. Okay, maybe you should, but remember another reporter with a young son is also affected, while Robert Novak is still at large.
This latter point is not only important because it is simply outrageous, but also because if he testified, the need for others to do so is greatly decreased. And, when such need drops to a certain level, a good case can be made that the First Amendment concerns of journalists should be at their highest point. A concern, as the linked discussed notes, is shared by conservatives as well -- including those supportive of a pending federal reporter privilege bill.
As to the judges' comments on bloggers, let me be clear -- I'm not currently talking to anyone that is likely to have any value to federal investigators. Seriously, blogs can be dealt case by case (as suggested by Judge Tatel, who by the way put forth another well reasoned opinion -- this is one Bush appointee that appears to be a good one, his opinion in the Cheney Energy Case notwithstanding). People like myself really cannot be said to be members of "the press" without much amusement, but Talking Points Memo or other elite blogs probably should receive top press protections.
When dealing with issues like reporter privilege, there probably should be some institutional presence, some connection of the "reporter" to the institution. The profession arguably offers a few special benefits that a regular speaker do not have -- suggesting why "the press" has separate protection. The line, as blogs suggest, is not always a clear one. Nonetheless, the privilege would be meaningless if any speaker could demand it.
Anyway, some suggest that the reporters here were basically duped, so should not use privilege to benefit wrongdoers. This turns privilege on the facts, which is tricky, but is reasonable (if not necessarily correct) in this context. Others suggest the investigation is so important that they must give up the goods. Jack Shafer at Slate argues that this is somewhat dubious, though I'm inclined to share the thoughts of someone (see link above) that disagreed with much of his reasoning.
Either way, the real target should be Robert Novak: he clearly knows the source(s), so there is no reason why the other two should be in jail while he is free to do his usual gruff commentary. Judith Miller, whose guilt on other matters is clear, in particular seems a strange target in this case, since she seems to be a small fry in this matter. Maybe not, I'm not as into the details as some bloggers, but still what about Novak?
And, what about the administration at large? Again, this is not a case of a reporter being the only sources available to convict a drug dealer or murderer. The administration itself surely has ways to find out who leaked the story (they probably know), so threatening reporters is especially unjustified in this situation. This is the ultimate injustice: insiders try to use the press for their own vindictive purposes, Novak takes the bait and is currently free, and others do not but are threatened with imprisonment. Oh, and if the administration seriously wanted full disclosure of the truth, it surely could happen.
Thus, talk about constitutional or common law reporter privilege and/or wondering if the Plame leak actually was a criminal act warranting the press being targeted is largely besides the point. The ultimate issue is the continuing lack of shame by members of the administration -- top down. Same shit, different day.