Kinsley vs. the Law

The usually astute Michael Kinsley engages in some sloppy reporting here:

Last week a federal appeals court ruling upheld a lower-court order that Miller and Cooper must testify or go to jail.

That is a travesty. These two public-spirited journalists promised anonymity to sources at a time when the law about "journalists' privilege" was unclear. Having made that promise, they feel obligated to keep it. If they shouldn't have made that promise, society should have sent them a clearer message to that effect. The message is still a muddle. Why these two, who never published the secret name, and not others, including some who did? Before we start jailing journalists for keeping promises, we need to decide when such a promise should be made.

Uh, the Branzburg case was decided by the Supreme Court in 1972. The Court held:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

What part of that holding is unclear to Kinsley?

You might want to take some remedial law classes, Mike. I hear U.S.C. has a night school; it might even be accredited.