"Get your facts first, and then you can distort them as much as you please." (Mark Twain)

Wednesday, May 11, 2005

Striking a Blow For Freedom 

It's worth surfing over to Findlaw today to read this excellent article about what makes a real First Amendment hero:
Last week, National Basketball Association Commissioner David Stern imposed the stiffest fine ever on a head coach: $100,000. What terrible offense did Houston Rockets Coach Jeff Van Gundy commit to warrant this unprecedented penalty? Did he punch, kick or bite a player?

Hardly. Van Gundy incurred Stern's wrath for stating publicly that the league had instructed its referees to call more fouls on the Rockets' All-Star center, Yao Ming. Worse, Van Gundy said his source was himself an NBA official, but he refused to name that official.

Until Van Gundy apologized and the league declared the matter closed, Commissioner Stern had even suggested that further sanctions against Van Gundy could be forthcoming. At that point Van Gundy joked that unlike New York Times reporter Judith Miller--who has just asked the Supreme Court to hear her case--if push came to shove, he would give up his source rather than go to jail.

Does Van Gundy's joke trivialize a truly important question of press freedom? After all, Van Gundy's own case only involves a monetary fine for statements about a mere game, whereas Miller faces imprisonment for statements concerned with national security.

In fact, there is a difference between the two cases, but Van Gundy, not Miller, is the more fitting hero of free speech. Moreover, his case dramatizes an important point: whatever scant protection the law provides for reporters to protect their sources, it provides woefully inadequate protection for whistleblowers who, like Van Gundy, are in other lines of work.

Farther down, author Michael Dorf deftly explains what I've been trying to boil down into words for some time now:
The principal rationale offered for the reporter-source privilege is to protect whistleblowers. Reporters sometimes must offer confidentiality to their sources because those sources fear retaliation from employers or others if their identities are known. Those states that recognize an absolute or qualified reporter-source privilege do so because of a judgment that the interest in bringing to light evidence of wrongdoing or other matters of public concern outweighs any countervailing damage to the institutions or people that would prefer to keep the relevant information secret.

Even if that judgment is justified in the abstract, it is not warranted in circumstances like those of the Plame case. There was precious little public interest in the fact that Valerie Plame worked for the CIA. And the government's reason for wanting to keep that fact private--the security of Plame and other agents--is of the highest order. The only wrongdoing that came to light as a result of the disclosure of Plame's status as a CIA agent was that of the felonious disclosure itself. Here, the disclosure was the wrongdoing.

Bingo!

Anyway, go read the whole thing.

 

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