Times' Miller Does Time

Presumably we could call it "Miller Time." I've seen many of the pious statements and editorials since the Court declined to intervene in the contempt proceedings against Judith Miller and Matthew Cooper (of Time magazine) at the end of their term. Miller's employer, the New York Times, led with an editorial yesterday harshly critical of the contempt citation and the lack of protection offered by the courts (and Congress) for the protection of journalists' sources.

The Times' editorial is pretentious and obtuse in its equation of the stand Miller is taking with the prohibition against prior restraint embodied in the First Amendment (and the position of the Times in the Pentagon Papers case) let alone the civil disobedience of the Underground Railroad and the civil rights movement. Fortunately, Findlaw posted a guest column today by a political scientist spelling out just how off-base many of the defenses journalists are offering for Miller's defiance are. Among other things, it explains the Supreme Court's decades-old decision in Branzburg v Hayes concluding that the First Amendment does not immunize journalists from the general requirement that citizens respond to valid subpoenas.

Even this piece, however, does not point out that Lewis Powell's fifth-vote concurrence in that case acknowledged that journalists can seek to quash subpoenas not sufficiently justified by the investigator as necessary. Judge Thomas Hogan did require special counsel Patrick Fitzgerald to prove that requesting information from journalists was the only way to obtain information needed for his investigation, something he wouldn't have to do were the subpoenaed party not a journalist.