The New York Times ran an analysis of the Libby case today that argues the verdict will change the way the press covers the government. Would that it does.
“Every tenet and every pact that existed between the government and the press has been broken,” said Theodore J. Boutrous Jr., a media lawyer who represented Time magazine and one of its reporters in their unsuccessful efforts to fight subpoenas from Mr. Fitzgerald, the special counsel in the Libby case.
There have been “tenets” and “pacts” between the government and the press? That would explain a lot.
Actually, there was a “truce,” but it was between the press and government prosecutors:
In the 35 years since the United States Supreme Court ruled, in Branzburg v. Hayes, that reporters have no right under the First Amendment to refuse to answer questions from a grand jury, press protections against Justice Department subpoenas have existed largely as a matter of prosecutorial grace. That is over.
“We had this truce for a generation since Branzburg,” said Mark Feldstein, a journalism professor at George Washington University. “Nobody really pushed it. The virginity is lost now.”
It’s interesting the Feldstein brings up the notion of virginity, what with an entire generation of Washington reporters behaving more like cheap tarts than innocent naifs.
But the clincher is this passage about “access journalism.” It dovetails with something I said earlier about what it used to mean to “protect a source,” and what it has come to mean in 21st century Washington:
Earl Caldwell, a reporter for The Times who was involved in the Branzburg case, would not cooperate even after the Supreme Court’s decision, and the government never pressed the point. In 1978, another Times reporter, Myron Farber, spent 40 days in jail rather than identify his source.
“I wonder,” Professor [Jane] Kirtley [of the University of Minnesota] said, “if part of it is that Caldwell and Farber were proudly outsiders.” By contrast, the journalists who testified at the Libby trial were Washington insiders, and they gave the public a master class in access journalism. It was not always a pretty sight.
“They’re not fearless advocates,” Professor Feldstein said of the reporters involved, “but supplicants, willing and even eager to be manipulated.”
Meanwhile, in faraway California, an editorial board “gets it.”
