The Court and the Plame Case

Today's Timesreflects the widespread consensus in the journalistic community that the inquiry into the Valerie Plame matter threatens the freedom of the press. In stirring language (to borrow a sarcastic term from Justice Scalia's opinion on yesterday's Ten Commandments cases), the editorial page criticizes the Court for not overturning lower-court contempt citations against Judith Miller and Matthew Cooper. The case, raged the Times, involved the"principle of a free and fearless press on which the nation was founded." Readers are told that"American history is full of examples of whistle-blowers who were able to inform the public of malfeasance only through reporters who were able to guarantee them confidentiality. The federal courts' assault on this tradition could have a chilling effect on their future willingness to speak up."

As the Times is well aware, reporters have never had an absolute privilege: there are elements of the Constitution other than the First Amendment, despite its enormous importance. It seems to me that it would take a pretty high bar for the court system to say that reporters should be forced to reveal their sources--but if the Plame case doesn't pass the bar, nothing does. Those who leaked about Plame are not"whistle-blowers who were able to inform the public of malfeasance only through reporters who were able to guarantee them confidentiality"--they were practioners of malfeasance who were only able to inform the public through reporters who were able to guarantee them confidentiality. If the Court's non-action provides a deterrent effect to future administrations--the next time you want to leak the name of an intelligence operative to score political points, you can't count on reporters not revealing your identity--all the better.