[Mb-civic] NYTimes.com Article: The Promise of the First Amendment

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The Promise of the First Amendment

October 10, 2004
 By ARTHUR OCHS SULZBERGER JR., chairman and publisher, and RUSSELL T. LEWIS, chief executive, The New York Times 



 

Last Thursday, a federal district judge ordered a New York
Times reporter, Judy Miller, sent to prison. Her crime was
doing her job as the founders of this nation intended.
Here's what happened and why it should concern you. 

On July 6, 2003, Joseph C. Wilson IV - formerly a career
foreign service officer, a chargé d'affaires in Baghdad and
an ambassador - wrote an article published on this page
under the headline, "What I Didn't Find in Africa." The
article served to undercut the Bush administration's claims
surrounding Saddam Hussein's nuclear capacity. 

Eight days later, Robert Novak, a syndicated columnist,
wrote an article in which he identified Ambassador Wilson's
wife, Valerie Plame, as an "operative on weapons of mass
destruction" for the C.I.A. "Two senior administration
officials told me," Mr. Novak wrote, that it was Ms. Plame
who "suggested sending Wilson" to investigate claims that
Iraq had tried to purchase uranium ore from Niger. After
Mr. Novak's report, several other journalists wrote stories
in which they said they received similar information about
Ms. Plame from confidential government sources, in what
many have concluded was an effort to punish Mr. Wilson for
speaking out against the administration by exposing his
wife as a C.I.A. operative. The record is clear, however,
that Judy Miller is not one of those journalists who
reported this information. 

Because the government officials who revealed Valerie
Plame's status as a C.I.A. operative to the press might
have committed a crime in doing so, the Justice Department
opened a federal criminal investigation to find whoever was
responsible. 

During the course of this investigation, the details of
which have been kept secret, several journalists have been
subpoenaed to provide information about the source of the
leak and threatened with jail if they failed to comply. 

On Aug. 12, Ms. Miller received a subpoena in which she was
required to provide information about conversations she
might have had with a government official in which the
identity and C.I.A. connection of Mr. Wilson's wife might
have been mentioned. She received this subpoena even though
she had never published anything concerning Mr. Wilson or
his wife. This is not the only recent case in which the
government has subpoenaed information concerning Ms.
Miller's sources. On July 12, the same prosecutor sought to
have Ms. Miller and another Times correspondent, Philip
Shenon, identify another source. Curiously, this separate
investigation concerns articles on Islamic charities and
their possible financial support for terrorism that were
published nearly three years ago. As part of this effort to
uncover the reporters' confidential sources, the prosecutor
has gone to the phone company to obtain records of their
phone calls. 

So, unless an appeals court reverses last week's contempt
conviction, Judy Miller will soon be sent to prison. And,
if the government succeeds in obtaining the phone records
of Ms. Miller and Mr. Shenon, many of their sources - even
those having nothing to do with these two government
investigations - will become known. 

Why does all of this matter? The possibility of being
forced to leave one's family and sent to jail simply for
doing your job is an appalling prospect for any journalist
- indeed, any citizen. But as concerned as we are with our
colleague's loss of liberty, there are even bigger issues
at stake for us all. 

The press simply cannot perform its intended role if its
sources of information - particularly information about the
government - are cut off. Yes, the press is far from
perfect. We are human and make mistakes. But, the authors
of our Constitution and its First Amendment understood all
of that and for good reason prescribed that journalists
should function as a "fourth estate." As Justice Potter
Stewart put it, the primary purpose of the constitutional
guarantee of a free press was "to create a fourth
institution outside the government as an additional check
on the three official branches." 

The founders of our democracy understood that our
government was also a human institution that was capable of
mistakes and misdeeds. That is why they constructed a First
Amendment that would give the press the ability to
investigate problems in the official branches of our
government and make them known to the public. In this way,
the press was sensibly put in a position to help hold
government accountable to its citizens. 

An essential tool that the press must have if it is to
perform its job is the ability to gather and receive
information in confidence from those who would face
reprisals for bringing important information about our
government into the light of day for all of us to examine.
Without an enforceable promise of confidentiality, sources
would quickly dry up and the press would be left largely
with only official government pronouncements to report. 

A quarter of a century ago, a New York Times reporter,
Myron Farber, was ordered to jail, also for doing his job
and refusing to give up confidential information. He served
40 days in a New Jersey prison cell. In response to this
injustice, the New Jersey Legislature strengthened its
"shield law," which recognizes and serves to protect a
journalist's need to protect sources and information.
Although the federal government has no shield law, the vast
majority of states, as well as the District of Columbia,
have by now put in place legal protections for reporters.
While many of these laws are regarded as providing an
"absolute privilege" for journalists, others set out a
strict test that the government must meet before it can
have a reporter thrown into jail. Perhaps it is a function
of the age we live in or perhaps it is something more
insidious, but the incidence of reporters being threatened
with jail by the federal government is on the rise. 

To reverse this trend, to give meaning to the guarantees of
the First Amendment and to thereby strengthen our
democracy, it is now time for Congress to follow the lead
of the states and enact a federal shield law for
journalists. Without one, reporters like Judy Miller may be
imprisoned. More important, the public will be in the dark
about the actions of its elected and appointed government
officials. That is not what our nation's founders had in
mind. 

http://www.nytimes.com/2004/10/10/opinion/10sulzberger.html?ex=1098427249&ei=1&en=1da32c2b3c2a58cf


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