Journalist are wringing their hands over the Lewis "Scooter" Libby indictment, worried that journalists such as Tim Russert, Matt Cooper, Robert Novak and Judith Miller will be paraded before a jury and forced to testify against their own witness. They worry that this leads us further down the path of the media becoming an arm of government, a frightening fact that the shield law (either written or law through court cases) is meant to avoid.
But a fact is lost in this: without the leak itself there is no crime. This is not a case of a journalist being called before a court because he uncovered some corruption within the government that a prosecutor couldn't prove. In this case, the leak of a CIA agent's name is, in itself, illegal.
Dan Kennedy puts it best when he says:
This has always been a lousy case for anyone who thinks there ought to be at least a limited reporter's privilege. Washington reporters, compromised by the ways of Washington, claimed a reporter's privilege not to protect a whistleblower or to expose government corruption (as Taricani did), but, rather, to maintain their promise of anonymity to a source or sources who may have outed an undercover CIA agent and thus undermined national security. I understand why they had to do that, but there's nevertheless something unclean about it.Now it's important to note that the indictment is about obstruction of justice, not about the leak. It's about the lies that prevent the government from finding out who, in fact, made the leak. But the leak is central and that is what makes this case special and why it will not lead us down the dark path of journalists as an arm of government.
Careful readers already know my stance on the shield law. I still believe that in the new media landscape it's next to impossible to write an appropriate shield law and, I believe, it's unnecessary. A source has many reason for coming forward, they are not always altruistic. Those forces will continue to be at work.
Kennedy believes that instead of trying to define who is a journalist but "I think it makes much more sense to define "journalism." Lisa Williams is not a journalist, but she's producing journalism. (But then what do we do with all those journalists who are *not* producing journalism?)" he said in an email.
I'm not entirely sure I agree, as it becomes a semantic argument. Should the court consider the relative value of each article in question based on a set of given criteria? Why is it up to the court to decide that?
And what about he simple issue that the first amendment is granted to the full population, not to a protected class?
One other thing keeps coming to my mind. While journalists talk and talk about the shield law, they're not sending investigators in to examine the evidence that brought this country into Iraq. More than anything, this should be the central issue, not the protection of a few reporters.