Mainstream media myopia on the First Amendment

October 27, 2005|By MICHAEL KINSLEY

Here in media world, we're all quite cross at The New York Times and its former star reporter, Judith Miller. She is widely believed to have sought her martyrdom as a career move. And then she gave up after a mere couple of months in jail. What a wuss!

And the Times: this great institution let a mere reporter lead it around by its nose, with predictable results. What a superwuss!

But this latest blow to the reputation of the mainstream media cannot be pinned on Ms. Miller or the Times. It is the result of a sentimental and self-indulgent view of journalism that is widely shared in media world - including by many of the journalists and media institutions now distancing themselves from Ms. Miller and the Times.

At the Times and beyond, the cult of the anonymous source continues strong. The Times has conceded that, in theory, a journalist's right to protect the identity of a source is not absolute, but the paper has not said what the limits are.

It is hard to imagine what circumstances would exceed those limits. An exemption for journalists from the basic citizen's duty to cooperate with law enforcement is supposed to encourage troublemakers who want to tell truth to power. But Ms. Miller was being used by people in power in a secret campaign to undermine a troublemaker.

The conversations Ms. Miller wanted to protect are not merely evidence of a possible crime - they are the alleged crime (outing a CIA agent) itself. If the reporter is immune from testifying, the law in question might as well not be on the books. The Times asserts this right to foil the justice system, not just for itself as an institution but for each of its reporters individually. And it even claims the right to ignore all judicial rulings, up to and including the Supreme Court, if these bodies happen to disagree.

In order to give journalists special privileges like this, you have to define who is and who is not a journalist. That is harder to do in the age of the Internet. One reason for the explosion of hostility against Ms. Miller and the Times is the resentment of the blogosphere. Blogging is, if anything, more like the kind of pamphleteering the framers had in mind when they guaranteed "freedom of the press" than is the Times. But if everyone with a blog or an e-mail list serve is a journalist, who isn't?

Another opportunity is coming up for the Times to lead the mainstream media off a First Amendment cliff. The first day under its new management, the Supreme Court agreed to decide several cases about campaign spending and the Constitution. The most important is a challenge to a Vermont law limiting how much a candidate can spend running for governor.

The law was explicitly intended to goad the Supreme Court into reconsidering its doctrine on campaign finance, which holds that (with various complications) the government may put limits on campaign contributions but campaign spending is an exercise of free speech and therefore protected by the First Amendment.

A Times editorial called Vermont "laudable" and declared that "the absence of [spending] limits gives an unfair advantage to wealthy candidates, who can spend vast amounts of their own money."

That last point is obviously true. But it should be equally obvious that limits on spending for speech are limits on speech, both in intent and in effect. You can't use money to buy votes directly in this country, for the most part. Having more money is an unfair advantage only to the extent that it is spent on sending a louder or more persuasive message. The government can and should do many things to help make the softer voices louder. But when it tries to make the louder voices softer, it is reducing speech, which is unconstitutional.

One interesting revelation in that 6,000-word deconstruction of the Judith Miller affair in the Times Oct. 16 was the different ways the culture of anonymous sources leads to suppression of information. The identity of sources is just the beginning. Yet the Times believes that its right to speak includes a right (for journalists only) not to speak when subpoenaed in a criminal investigation. Meanwhile, it cannot see how a right to speak includes the right to spend money on speech.

As many have pointed out over the years, the Times might feel differently about a law that limited how much any one person or organization could spend putting out a newspaper, although that too would reduce the "unfair advantage" of some players over others. But this would be an excellent moment for the Times and the other mainstream media to reconsider all their various pleas for special treatment.

Michael Kinsley is a commentator who lives in Seattle.

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