"We're seeing outright contempt for an independent press in a free society," said Jane Kirtley, who teaches media ethics and law at the University of Minnesota. "The fact that courts have no appreciation for this is new, is troubling, and you cannot overestimate the impact it will have over time."...
Professor Kirtley said the legal turning point came in 2003 with a decision written by Richard A. Posner, an influential federal appeals court judge in Chicago. Judge Posner wrote that lower courts had often misread and failed to follow the holding of a 1972 Supreme Court decision, Branzburg v. Hayes, which rejected First Amendment protection for reporters facing grand jury subpoenas.
Professor [Rodney A.] Smolla said news organizations had for 30 years managed to convince lower courts that Branzburg, decided on a vote of 5 to 4, held the opposite of what its majority had decided. While the majority opinion had been fairly clear, lawyers for news organizations had seized on a brief and enigmatic concurrence by Justice Lewis F. Powell Jr. to convince the courts that they should recognize some level of protection.
That seemed to end yesterday in the Supreme Court, which upheld without comment lower court decisions ordering that Judith Miller of The New York Times and Matthew Cooper of Time magazine be jailed for refusing to testify about their sources in an investigation into the disclosure of a covert C.I.A. officer's identity.
"The media lived on borrowed time for a long time," Professor Smolla said, "as very able media lawyers managed to spin a loser into a winner."...
"The federal judiciary, from the Supreme Court down, has grown very skeptical of any claim that the institutional press is deserving of First Amendment protection over and above those of ordinary citizens," Professor Smolla said. "The rise of the Internet and blogger culture may have contributed to that. It makes it more difficult to draw lines between the traditional professional press and those who disseminate information from their home computers."
June 28, 2005
Adam Liptak has this piece in the NYT about the decline of the notion that mainstream journalists are entitled to special First Amendment protections: