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Wednesday, February 16, 2005

Like lambs...

Judge Sentelle's opinion today in In re: Grand Jury Subpoena will be heralded as a great victory for enemies of the current administration who are waiting for some keystone to support their conspiracy theories du jour. Let them rejoice. While they dance for joy, the grownups will win the far more important battle over our constitutional heritage.

Here is the bottom of line of Judge Sentelle's opinion: The first amendment means what it says and nothing more. The appellants here sought an expansive reading of the first amendment on two counts. First, they wanted the king of all penumbras around the first amendment guarantee of freedom of the press. Under their theory, the Constitution, in granting freedoms to the news media, guarantees them a path of least resistance. According to the reporters' theory, a source need not be revealed to a grand jury (!) since this revelation would put a damper on that individual reporter's ability to get confidential information in the future. This would expand the first amendment from only protecting the very right of the press to print or broadcast its news stories or opinions without fear of criminal prosecution to weighing against any effort to inconvenience anyone who has anything to do with the press. But, as my antitrust professor says about the Sherman Act's guarantee of fair competition: "We never promised you a rose garden." The first amendment provides a critical freedom necessary for the political and social life of a free society. It ensures that the free flow of information cannot be suppressed by the government. But it does not immunize all possible negative effects that might result from the expression of freedom of the press. In their attempt to create a large electron cloud around the First Amendment's guarantees, the appellants in this case do the Constitution a disservice by failing to note the incredible guarantee provided by the first amendment. In constraining the reach of the first amendment to the core protection provided by the text itself, the panel led by judge Sentelle has refocused our attention on the essential characteristics of our journalistic liberties.

The same treatment is given to the idea that another First Amendment protection, for freedom of speech, could be expanded to give a confidential source the right to speak to the press (which he certainly has) with total anonymity (which he certainly does not). Once again, a look at the core protection of the first amendment is informative. The first amendment guarantees that private citizens may communicate their views without fear of punishment being doled out because of the content of their viewpoints. It does not promise a pat on the back or immunity from other, content neutral laws, regulating interactions between government employees with confidential information and the public at large. By denying the orbital protections, the DC Circuit returns turns our attention away from a vanilla First Amendment ideal allowing communication on the communicator's terms back to the more powerful notion (which we now take around the globe) that free people must be able to express their political ideals without fear of the wrath of those in power.

Led by its Rightsized First Amendment construction, today's opinion boldly flies in the face of the forty year old academics' crusade to pigeonhole every conceivable human interest into various protections of the Bill of Rights. By disguising today's jurisprudence in political cloth, the DC Court may very well have hidden this important fact so well, that they who would be most normally inclined to fight tooth and nail against such a doctrine will be first in line to support it.


Anonymous Anonymous said...

Just like Marshall in Marbury, that which we gain far exceeds that which we lose.

4:20 PM  
Blogger Publius said...

I guess we'll see. I tend to think that the reporters are going to suck it up, go to jail rather than reveal their sources.
It's interesting that liberals would make the argument that it's worth giving up some first amendment protection for what they see as accomplishing something more important.
I've heard this argument blasted somewhere before . . . probably by the same people that are making it in this case.
I guess "they" are probably right--giving up some first amendment protection to help keep terrorists from blowing up buildings is probably less laudable than giving it up to find some dirt on a couple folks in the white house.

9:36 AM  
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