The Right To Silence

So far this week federal courts have handed down two important rulings bearing on reporters' rights.

On Tuesday, the Court of Appeals for the District of Columbia concluded that The New York Times's Judith Miller and Time magazine's Matthew Cooper do not have the right to stay mum about who fed them Valerie Plame's name. The reporters face jail time if found in contempt of court. Their lawyer plans to appeal the ruling.

In a lower profile case, a federal judge on Monday dismissed a request by The Baltimore Sun for a court order compelling state officials to talk to a reporter and a columnist whom the governor of Maryland had declared off limits.

Was this second case a defeat for the free press? The answer in a moment.

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First some background: In November, Governor Robert Ehrlich's press office sent a memo to the public affairs offices at state agencies that said, "No one in the Executive Department or Agencies is to speak with David Nitkin or Michael Olesker until further notice."

"Do not return calls or comply with any requests," the order continued. "The Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration."

Nitkin is a Sun reporter and Olesker is a columnist. According to The Sun, Ehrlich was peeved over Nitkin's series about a deal granting a chunk of public lands to a politically connected developer, and Olesker's columns about whether taxpayer funded "tourism" ads featuring Ehrlich were ethical.

According to the judge's opinion, the Ehrlich ban meant the two reporters could not get comment from state officials, even on background, nor learn whether the "no comment" was because of the governor's order or some other reason. Nitkin was apparently barred from a press conference.

Pretty bad. But not illegal, judge William D. Quarles decided, in tossing the Sun's bid for an injunction.

The audacity of Ehrlich's order is a little scary, given current attitudes toward the media—reflected in a recent survey of high school kids that found that barely half believe newspapers should publish stories without government approval.

But is this Maryland case a major defeat for the free press? No.

First, the decision makes legal sense. As Quarles argues, the First Amendment gives the press a broad right to publish information, but "the right does not carry with it the unrestrained right to gather information."

Government officials have no right to withhold public information from reporters (and in the Sun case, Nitkin has been advised that he can still make Freedom of Information Requests to state government, as the law requires). But they must have the right to decline requests to talk to the press. As petty and frustrating as an order like Ehrlich's might be, no one ought to be compelled to talk to the press. That would set a terrible precedent. The press should hammer government officials who clam up, but the courts can't really force the issue.

(Sometimes all you need to tell a great story is paper. See here.)

As for the practical impact of Ehrlich's order, why not take Republicans' standing advice, and let the free market operate?

If Ehrlich's people won't talk to Nitkin and Olesker, I'm sure plenty of the governor's Democratic rivals will. And when the gov's office and state GOP officials notice that two top writers at one of the biggest media outlets in Maryland are getting nothing but Democratic input, the Ehrlich ban might soon be lifted. Plus, Ehrlich's order frees Nitkin and Olesker from having to trumpet the spin that state spokespersons so often dish out, which reporters dutifully use valuable space to print. And if Nitkin and Olesker start using a stock line in their stories like "Ehrlich's office has barred state employees from speaking to this reporter," the governor will begin to look like he's hiding something.

After all, silence speaks volumes.

Meanwhile, media critics nationwide will parse the Cooper-Miller ruling to pieces.

Plame is the wife of Joseph Wilson, the former diplomat who blew the whistle on Dubya's claim that Iraq sought uranium from Niger. She's also a CIA officer, as columnist Robert Novak revealed in a July 2003 column disparaging Wilson's claims. Whoever gave her name to Novak and other reporters, including Miller and Cooper, might have violated federal law against naming clandestine officers. Prosecutors have demanded that reporters divulge who gave them Plame's name, but Miller (who never wrote about Plame) and Cooper have refused, citing the need to protect confidential sources.

The court's ruling against Miller and Cooper may have wide significance: As the Plame case unfolded, a Rhode Island reporter was sentenced to home arrest for keeping secret a source who broke grand jury rules with a leak. Meanwhile, military courts have subpoenaed several reporters' notes, which might contain confidential information. If those courts succeed, there is a clear potential for a chilling effect on secret sources who often provide crucial information that upholds the public's right to know.

That's a clear no-no. Usually.

The Plame case is trickier because whoever leaked Plame's name might have committed a federal offense in so doing. So Miller and Cooper might be witnesses to a crime. But given post–9-11 secrecy, confidential sources are an important check on government power. On balance, reporters—like Ehrlich's staff—ought to be allowed to keep quiet.

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