Man Without Qualities

Wednesday, June 08, 2005

Privileges For Hire, Arguments By The Yard, Agendas As Far As The Eye Can See

Ted Olson is a fine attorney capable of spinning very good arguments. He is now representing TIME magazine and its reporter, Matt Cooper, who is facing jail time for contempt for his refusal to divulge his sources in the Plame case. To hear Mr. Olson tell it, First Amendment law in this area is obscure and the Court should fix that:
The principal reason supporting intervention by the Court at this time is that no one, whether journalist, lawyer, source or judge, can say with confidence what the law is. And much of that confusion derives from the Court itself: 33 years ago in the case of Branzburg v. Hayes, the Court issued a 5-4 decision casting doubt on whether the First Amendment provides protection for reporters' confidential sources. The narrow majority included an enigmatic concurring opinion by Justice Lewis Powell, resulting in confusion and conflicting lower court opinions on the subject ever since.

Gee, that sounds not so good. Everyone is so confused.

But isn't it odd, then, that the Court didn't seem so confused when it construed Branzburg in a more recent case, Cohen V. Cowles Media Co., 501 U.S. 663 (1991), this way:
Neither does the First Amendment relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. Branzburg v. Hayes, 408 U.S. 665 (1972).
Does the Court need to say it any more clearly than that? Just a few months previously the Court had already said unanimously in University Of Pennsylvania V. EEOC, 493 U.S. 182 (1990)
The case we decide today in many respects is similar to Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Court rejected the notion that under the First Amendment a reporter could not be required to appear or to testify as to information obtained in confidence without a special showing that the reporter's testimony was necessary.
And a few years before that the Court had said in Dun & Bradstreet, Inc. V. Greenmoss Builders, 472 U.S. 749 (1985):
We explained in Branzburg v. Hayes, 408 U.S. 665 (1972) that "the informative function asserted by representatives of the organized press" to justify greater privileges under the First Amendment was also "performed by lecturers, political pollsters, novelists, academic researchers, and dramatists." Id., at 705. From its inception, without discussing the issue, we have applied the rule of New York Times to nonmedia defendants. See New York Times, 376 U.S., at 254 , n., 286; Henry v. Collins, 380 U.S. 356 (1965); Garrison v. Louisiana, 379 U.S. 64 (1964). And this Court has made plain that the organized press has a monopoly neither on the First Amendment nor on the ability to enlighten. First National Bank of Boston v. Bellotti, 435 U.S. 765, 782 (1978) See also Pell v. Procunier, 417 U.S. 817 (1974) (press has no independent First Amendment right of access to prisons). Cf. Buckley v. Valeo, 424 U.S. 1, 48 -49 (1976) (the idea that government can restrict the speech of some elements of society to enhance the relative voice of others is "wholly foreign" to the First Amendment).
But, see, Mr. Olson tells us that existing First Amendment law is just unclear on the question of whether a reporter for the media is different from the rest of us, and whether such a reporter has special privileges under the Fist Amendment to keep sources secret.

He's actually able to say such things without breaking into laughter. That's one of the reasons why they pay him the big bucks.

On the other hand, there is the question of why the Journal ran this item, which is essentially a piece of a brief Mr. Olson has been paid to file for his media clients.

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