Journalists and “Omerta”

“Jail was something a journalist had to endure on occasion. It is, to quote ‘The Godfather’s’ Hyman Roth, “’the business we have chosen.’”

Richard Cohen, Washington Post, 2 August
2005, p. A13.

No stronger evidence of how off-track the American journalistic profession has gotten could be offered than by Richard Cohen’s comparison, quoted above, of journalists to mob figures, even fictional ones.

Mr. Cohen writes today about Judith Miller, who has become a martyr to all right-thinking journalists because she chose to go to jail rather than testify in court as to her source of information in the Valerie Plame affair. If you, your neighbor or El Jefe were to refuse to testify when properly subpoenaed to do so, we would go straight to jail without passing go or collecting $200.00. But because Ms. Miller is a “journalist”: because she writes for the New York Times, and is not a doctor, lawyer or Indian chief, much less a ditch-digger or a blogger; Mr. Cohen and his pals in prestige journalism maintain that, simply by virtue of their occupation, “journalists” have some special legal privilege not to comply with the same law the rest of us do.

The First Amendment provides, in pertinent part, that:

Congress shall make no law…abridging the freedom of speech, or of the press…

This has normally been understood that persons can write or speak as they please. This applies to everyone, to El Jefe, “journalists,” you, your neighbors, and ditch-diggers too. Of course, this is not, and has never been understood to be, without limits: for example, there are still libel and slander laws. But Mr. Cohen, and Ms. Miller, are claiming that the law recognizes, or should recognize a “reporter’s privilege” not to name sources. Some states do, in my view, wrongly, recognize such a right. Federal Courts, generally speaking, have not.

Ms. Miller, by her refusal to answer the Plame prosecutor’s questions is in effect contending that there is something more than the liberty to speak and write that is protected by the First Amendment: that “journalists” are a special, privileged class, who receive legal protections that the rest of us commoners (including, incidentally, bloggers like yours truly), do not.

What the press is really after, of course, is something like medieval “benefit of clergy.” In old English law, “benefit of clergy” meant that clergymen accused of offenses could claim that they were outside the jurisdiction of the King’s courts and subject only to an ecclesiastical court applying canon law. Ms. Miller, by declining to testify, as any regular citizen would be required to do, is in effect claiming that by the sole virtue of her employment by a newspaper, she is beyond the law that the rest of us must comply with.

That is not what the Constitution is about. The Constitution allows the Washington Post or the New York Times or CBS to print and to say what they will. Everyone enjoys that right. But "media outlets", because they are “media outlets” do not have rights the rest of us do not. Mr. Cohen can quote “Hyman Roth” from The Godfather (actually, Mr. Cohen, it’s Godfather II) till the cows come home, but what he’s after is not equal justice under law. If Ms. Miller wants to defy the court: if she chooses journalistic "ethics" over the law, because she thinks she owes her sources omerta, then this is the "business that she has chosen" and she is precisely where she belongs -- in jail.

One last thought: The prestige press is SERIOUSLY upset about Judith Miller. As I said, she has become a martyr to them, and they are out for some scalps. President Bush and the administration, in particular Karl Rove, who are likely to be blamed by the working press for this business, had better watch out.