Posted 6/08/2005 05:44:00 PM by Douglas

Since this whole "Deep throat" thing has hit the press, there's been a lot of conversation about how much authority a journalists should have to protect their sources. Not it looks as thought Texas has become the 33rd state to institute some protection for journalist to keep their sources confidential.

Texas Attorney General Greg Abbott has joined officials in 33 other states in urging the U.S. Supreme Court to support the right of reporters to protect the identities of their sources.

Abbott co-authored a friend-of-the-court brief supporting the concept of reporter's privilege, which protects journalists from being forced to disclose information gathered from confidential sources.

"A free and open democracy requires a free and open press," Abbott said Tuesday.

That's absolutely true, and I don't think there's a Democrat or Republican can disagree with that. But what gets sticky is where the journalists themselves draw the line, not is what they can report, but what they should report. Not to mention the complications of what, legally, constitutes a journalist. Case in point, Vanessa Leggett. She did 18 months for not revealing her sources (although this case is very suspicious, in that the FBI offered to hire her as informant, and only went after her sources after she turned down their job.)

So why do 33 states now protect the right to keep sources anonymous if the Federal courts don't? Either they have the right to report their findings without risk of prosecution, or they don't. It doesn't matter if Court A gives them that right if Court B doesn't. It's pretty much all or nothing.

But apparently those statues in 33 states are contradictory to the Supreme Court ruling, Branzburg v. Hayes, which settled this question of privileged confidentiality among journalists once and for all. They don't have it, which would lead me to conclude that all 33 of those state laws would be overturned if ever challenged Constitutionally.

So why am I wound up at this, or why do I even care? It's not for Deep Throat, Nixon, or Judith Miller. It's because I had to sit and listen to someone drone on about how "some people have too much freedom in this country," referring to journalists and their withholding their sources.

Sure, anyone can go too far, and Judith Miller and Jayson Blaire weren't the first (or last) reporters to make shit up. But the First Amendment is first for a reason, and the Founders didn't put freedom of the press in there with speech and religion by accident. The press is either censored by the government, or it isn't. There's no middle ground in a free society, and if they aren't free to report unpopular events without fear of prosecutorial retaliation, then the First Amendment doesn't really mean much. After all, popular speech doesn't need to be protected.