Bang the Drum, Slowly

Kevin Drum and other highly principled voices have told us we must be very, very sad that the Supreme Court refused to take up the case of Judith Miller and Matt Cooper or, at a minimum, that we must take a principled stand for or against a reporter's privilege and conceal, "posthaste," our glee at the prospect of Judy "Fucking" Miller in the pokey.

Kevin links to Garance Franke-Ruta at TAPped, who manages to mangle the facts in a remarkable fashion:

KUDOS. To Armando over at DailyKos for standing up against the media-bashing hordes and decrying the Supreme Court's decision to refer the question of whether there is such a thing as reporter's privilege back to the D.C. Court of Appeals, which had ruled that there is not.

But as the article Franke-Ruta links to makes clear, the Supreme Court isn't referring anything to the D.C. Court of Appeals. It declined review and the matter goes back to the District Court. And the issue of whether there is a reporter's privilege will not be relitigated in the District Court, or anywhere else in this particular case.

I can't get too excited about the absence of a protection for journalists which no one else enjoys. If you are not a reporter and had the same information that the prosecutor seeks from Miller and Cooper, and you refused to testify, you'd face the same penalty that Miller and Cooper face. And you wouldn't have a privilege to hide behind. I'd like to hear the principled explanation of why Miller and Cooper deserve special protection you and I don't have, solely because of their profession.

(And I'm not talking about that "are bloggers reporters" bullshit. I'm talking about everyone or no one.)

Can the power to compel reporters' testimony be abused, to silence whistleblowers? Sure. But, as the Plame case illustrates, the privilege can be abused to protect lawbreakers inside the government who use leaks to harm others.

As for Miller, the glee comes down to this: if you use anonymous sources to promote lies, especially ones with deadly consequences, you don't deserve sympathy when your promises to anonymous sources (albeit different ones) put you on the horns of a dilemma. And there's no hypocrisy involved in taking pleasure at the fact that Miller doesn't enjoy a privilege which clearly does not exist under current federal law. If Miller ever believed otherwise, she got some very bad advice.