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Friday, March 25, 2005

Don't blame Floyd Abrams if his clients insist on putting muddled but journalist-friendly First Amendment precedents at risk

Howard Bashman in How Appealing points us to this review by The New Republic Online's Alexander Barnes Dryer of First Amendment lawyer Floyd Abrams' new book, Speaking Freely: Trials of the First Amendment.  I haven't read the book yet, but Mr. Dryer's review focuses mainly on a subject I've blogged about quite a bit — Mr. Abrams' tactical and strategic choices in representing MSM journalists Judith Miller and Matt Cooper in the Plame affair. Mr. Dryer writes (links in original):

In retrospect, it's difficult to criticize the approach Bickel and Abrams ultimately took [in the Pentagon Papers case], given that the outcome — a near-total ban by the Court on any "prior restraint" of speech — was so favorable to civil libertarians. But as Bickel understood, even the Pentagon Papers triumph came at some cost, for it marked a new delineation of what the First Amendment did and didn't allow. Abrams argues that the government's challenge led to this delineation, but it is undeniable that the First Amendment defense he and Bickel presented led to it as well, for it allowed the Court to rule on the Amendment itself. Anytime the courts are given such power ["such an opportunity" might be a more apt phrase here than "such power" — Beldar], the First Amendment is at risk.

Nowhere is this danger more apparent than in Abrams's current case, defending journalists Judith Miller and Matthew Cooper from a government subpoena over their confidential sources. Abrams is basing his case on the First Amendment. But as two authors of the act under which the reporters are being subpoenaed have written, it's not even clear an investigation (let alone subpoenas) is justified, given the specifics of the case. Jack Shafer has made a compelling argument that Miller and Cooper should reject Abrams and his First Amendment-based defense of them. A narrower defense, based solely on the act in question, might lead to surer victory.

As I argued in my previous lengthy post (and see also the more recent commentary and links over at Just One Minute), I continue to believe that it's absolutely ridiculous to suggest that reluctant witnesses, whether from the press or otherwise, have legal standing to abort altogether a criminal investigation that has not yet gotten out of the grand jury investigation stage. We have an entire criminal justice system that emphatically does not turn on such witnesses' assessment of whether a crime has been committed or how criminal statutes ought to be applied to facts to which neither they nor we are fully privy — facts that by definition the prosecutor and grand jury have not yet fully plumbed themselves.

It is awfully amusing, though, to watch the angst develop on the left as this case progresses. And for all my regard for Floyd Abrams — whom I hope is indeed counseling his press clients as to the big-picture strategic aspects of the precedents he might set, or fail to set, or even erode, while representing them in court — I continue to believe that folks like Mr. Dryer and Slate's Jack Shafer are misdirecting their fretting. Mr. Abrams is, ultimately, not a principal here; he's an advocate, and he's ethically required to follow his clients' directions.

If they think the facts of this particular criminal investigation (what we know about them, anyway) don't present a good pattern to put "at risk" the concededly muddled state of federal precedent on whether there is, or ought to be, a federal common-law "shield privilege" or even more fundamental First Amendment precedents, then Mr. Dryer and Mr. Shafer should be talking not to Mr. Abrams, but to his clients (Miller and Cooper) and their employers (the New York Times and Time magazine). Other reporters apparently have managed to avoid outright defiance of grand jury subpoenas in this case, perhaps by obtaining their confidential informants' consent to waiving confidentiality or otherwise.

In short, if Mr. Dryer and Mr. Shafer think that this case unjustifiably puts First Amendment law at risk — and I certainly agree with Mr. Dryer that the current "ambiguity regarding the right to confidential sources often works in journalists' favor" — they need to tell Matt and Judy to cop a plea, cut a deal, and give up their sources instead of insisting on being martyrs. Don't blame Floyd, First Amendment icon though he justly has become.

Posted by Beldar at 06:34 PM in Law (2006 & earlier), Mainstream Media | Permalink

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Comments

(1) jb made the following comment | Mar 26, 2005 4:31:46 PM | Permalink

It's said so often that it's a cliche, but it's true: If the 2nd Amendment were interpreted as literally as the lefties interpret the 1st Amendment, we would all have mandatory automatic weapons in our mandatory residential gun storage closets.

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