"America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within."
--Joseph Stalin

Monday, July 25, 2005

Karl Rove/Valerie Plame Case Indicates Shield Law is Terrible Idea.

Will Malven

Congress is debating the passing of a “shield law” which would protect members of the press from being forced to reveal their sources. This push for the so-called shield law has taken on new meaning since the Valerie Plame “outing” case has resulted in the jailing of New York Times reporter Judith Miller on a contempt of court finding for refusing to “give up” her sources for a story she never wrote. We should be asking many questions before we grant this kind of sweeping immunity to the “Fourth Estate.” I believe passing these laws would be a dangerous, dysnomic, act that would give the press a legal carte blanche that is unwarranted given their recent history. So called shield laws grant the press entirely too much power. I have laid out several reasons for this reticence to accept this law without objection.

First, I believe that it is a violation of the equal protection clause of the fourteenth Amendment in setting up a special privilege for members of the press, a privilege not available to the average citizen or blogger. There are more understandable exceptions for Doctors, Lawyers, and Priests. For lawyers this kind of confidentiality is required by the due process clause of the Fifth Amendment to the Constitution and the assistance of counsel clause of the Sixth Amendment to insure that the accused has full and fair trial with proper representation. For Medical Doctors, this kind of confidentiality is necessary to insure that his patients feel comfortable confiding their deepest medical secrets so they may secure the best treatment. A more questionable in this modern age perhaps, but certainly historically recognized right in “common” law is that between a priest and his parishioner. The Seal of the Confessional was the first recognized right of confidentiality, and has been accepted as legitimate for hundreds of years.

Second, the term “right to know” is a misnomer. I believe that it should be my “right to know” who the source for a story is so that I can evaluate for myself the validity and honesty of the source. The MSM would have us believe that the protection of a shield law is for the good of the country, in that people will not be forthcoming with information if their identities are not protected. My question to them is, “Are we supposed to trust the MSM to be an honest broker of the information with which they are presenting us. It begs the question, we are speaking, are we not of the same MSM that presented us with fake documents concerning President Bush’s Air National Guard service records? These records, had individuals independently investigating the story not discovered the forged nature of the documents, might have had a profound influence on the Presidential Election of 2004. Are the reporters involved in this story the same members of the press that the American people I and are supposed to invest with their blind trust?

Thirdly, the MSM has been proven not only to be easily duped by less than honest actors serving as sources for stories, they are the same MSM which has been shown time and time again to create and or embellish news stories. I am reminded of the faked unexpected acceleration tests that 60 minutes performed on Audi 5000 automobiles in 1986, in which they hired an engineer to rig the transmissions of test vehicles to duplicate the alleged defect. Or perhaps I should mention Mr. Jason Blair, late of the New York Times, famous for his, shall we say, creative technique in reporting the news (pun definitely intended). And let us not forget the brouhaha over CNN’s self-censoring in Iraq just so they could maintain their presence there. Michael Isikoff’s faulty report of guards flushing copies of the Koran down the toilet in Newsweek Magazine resulted in riots and the deaths of Afghanistan citizens. Should we be putting our blind trust in organizations such as these?

Fourth, the information coming out of the Plame case Grand Jury indicates that Robert Novak stated that his second source was Karl Rove. Karl Rove’s “confirming” statement was “I have heard that too.” I would ask is this the standard to which the MSM is to be held for a confirming source on a story? Is that a level of confirmation with which we should be comfortable? It is easy to envision a scenario in which someone overhears an outrageous, made up tale about an individual, and with no supporting information, no evidence whatsoever, becomes a confirming source. Is that what we should call legitimate sourcing? I venture to say that it is not.

Lastly and certainly, given all of the above doubts about story legitimacy and sourcing, most worrying of all, should we feel comfortable granting this kind of blanket immunity to a Fourth Estate which has become, in essence, an adjunct of the Democrat party? Can we entrust a body which has proven itself so clearly to be biased in support of one party, and actively campaigning against the other with this kind of power? This concept of “the right to know” is a right created out of whole cloth by the press itself. There is no historical basis for it. It is based on the assumption that the press is nobler than the citizenry. It is a right which they have, in their self-righteous belief that they should be the sole monitors of our government’s actions, arrogated to themselves.

Once again, we see the Congressional RINO’s, Senators Arlen Specter (R-Pen.) and Richard Lugar (R-Ind.) and Representative Mike Pence (R-Ind.), in league with the usual liberal suspects, Chris Dodd (D-Con.), Russ Feingold (D-Wis.), Chuck Schumer (D-N.Y.), and Rick Boucher (D-Va.) racing head-long to pass this highly questionable law. Deputy Attorney General James B. Comey was slated to appear before the Senate Judiciary committee Wednesday to testify on what he has described as “bad public policy primarily because it would broadly bar the government from obtaining information about media sources, even in the most urgent of circumstances affecting the public’s health or safety or national security.” Comey said, “The bill would seriously jeopardize traditional notions of grand-jury secrecy and unnecessarily delay the completion of criminal investigations.”

This proposed “Free Flow of Information Act of 2005” would have the effect of overturning the Supreme Court decision in Branzburg v. Hayes. In Branzburg v. Hayes the Supreme Court, in a 5-4 decision written by Justice Byron White, ruled that while “without some protection for seeking out the news, freedom of the press could be eviscerated. [The cases before the Court] involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” In this ruling, the court basically was stating my first objection to the currently proposed law; average citizens don’t enjoy this protection, so reporters shouldn’t either.

I believe that the risks involved in allowing the press to operate with impunity, far out-weigh the advantages to the public in having the information that might become available from anonymous sources being used. Without any recourse left to the public for accountability this kind of shield law places entirely too much power into the hands of a group in our society which has proven itself far too unreliable to be entrusted with such power. To be fair, members of Congress on both sides of the aisle have expressed some concerns that the act may be too broad. Senator Diane Feinstein (D-Cal.) described the law as “extraordinarily broad.” As a member of the Senate Select Committee on Intelligence, she has real reason for these concerns, and I agree with her.

Extra-Judicial powers for individuals or sectors of our society should be granted very rarely and grudgingly. Although an out of control judiciary is a threat to our Republic, an uncontrolled free-running press could present an equal or even greater threat to our Republic by exercising undo influence upon the electorate.

As always, balance is the key. It is up to Congress and the individual citizen (by letting their representatives know their wishes) to define and maintain that balance.

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