Employment Law Central
Conviction Reversed for Over-the-Top Closing Argument

To Do List

At the top of today's to do list? Cancellation of any subscriptions either I or my office have to Time Magazine. I don't care to read a publication that bends and spreads for federal prosecutors.

Herewith a piece I wrote this morning for a newspaper ...

Truth, justice and the American way are not synonyms, and it is dangerous to think so. The case of Judith Miller of The New York Times shows us why.

Ms. Miller is now in a federal prison, where she will serve a sentence of up to 120 days for refusing to obey the order of a federal judge. She was ordered to provide the name of a confidential source to a federal grand jury. She refused, claiming that to do so would undermine the truth-seeking function of journalists.

Our law recognizes some instances in which a person can lawfully refuse to testify. The most famous example is the Fifth Amendment privilege which permits a person to avoid saying things that may incriminate him. Privileges apply to such relationships as doctor and patient, and to spouses.

There is no journalistic privilege, however.

Ms. Miller was summoned to a grand jury by a federal prosecutor investigating who leaked the name of a confidential CIA agent named Valerie Plame. Ms. Plame’s husband was a senior State Department official who was at odds with the administration’s claim that Iraq possessed weapons of mass destruction.

Some suspect that White House officials leaked Plame’s name to the press in an effort to intimidate or punish her husband for breaking ranks with the party line. If these allegations are true, then a serious federal offense was committed.

Ms. Miller did research on the story. So did Time Magazine. Federal prosecutors subpoenaed the reporters, requiring that they bring their notes identifying their sources. Both news organizations refused to do so, and argued all the way to the United States Supreme Court that there should be a journalistic privilege. The Supreme Court was unpersuaded, and now the reporters have no legal options left.

Time Magazine’s editor, Richard Pearlstine, decided that his magazine should comply with the court’s order, reasoning that no American is above the law. He researched cases in which the Supreme Court and the president collided. In two famous case, Eisenhower’s seizure of steel mills in the Korean War, and Nixon’s refusal to turn over Watergate tapes, the Court held the acts of the president unlawful. Both presidents obeyed the Court.

The fault in Pearlstine’s reasoning lies in the assumption that a president is like a news organization. The presidency, like the Supreme Court, is a constitutional office with reciprocal rights and duties arising under law. The press is not a constitutional office. It stands outside the constitution; it has rights, to be sure, as do we all, but it is not a creation of government.

Time Magazine’s decision to roll over and play dead in response to federal prosecutors is lamentable. The magazine should report the truth, wherever it leads, and it should do what it believes necessary to preserve the truth-gathering process. If that means protecting the names of confidential informants, then it should be prepared to defy the law to protect the principle.

That is what civil disobedience involves. Henry David Thoreau engaged in such disobedience when he refused to pay a poll tax used to fund the war with Mexico. Rosa Parks did it when she sat down in a seat reserved for white people on a Detroit bus. Justice collided in those instances with what the American way as defined by our laws required.

Judith Miller’s act is not one of defiance. It is an act of principled disobedience. The law, the American way, says no reporter can refuse to identify his or her source if a federal prosecutor summons them to a grand jury and demands answers. Ms. Miller and the Times believe that would undermine the newspaper’s ability to report the truth. So truth and the American way collide.

I am proud of Judith Miller’s refusal to obey the order of the Court. She has exercised a right to refuse to obey and now endures the punishment that follows. In so doing, she forces us to consider whether the law is right. She has broken with the herd and now stands alone beckoning to the rest of us to look and consider the things she sees.

Judith Miller and The New York Times have taken a firm stand on principle; the same cannot be said of Time Magazine, my subscription to which, I am happy to report, will be cancelled today.