The ignorance of the news media . . .

[stevenehrbar]

. . . about their own profession is astonishing.

Washington Post staff write Carol D. Leonnig just wrote, and the Post published, the following statement:

The plan for defending I. Lewis "Scooter" Libby is likely to substantially delay his trial and create another round of tense First Amendment battles over whether a court can compel reporters to turn over information about the confidential sources in Libby's criminal case.

This is utterly incorrect; the only relevant amendment is the Sixth

There is no law, in statute or court precedent, establishing that the First Amendment grants to the press as an institution or to reporters as members of an institutional press any more rights than any private citizen not engaged in reporting.  The freedom of the press, in the words of James Madison, is the "freedom of the use of the press", not a guarantee of special freedoms or privileges to those who report the news.  So the First Amendment is irrelevant.

However, the Sixth Amendment reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

That is, the Constitution absolutely guarantees Lewis "Scooter" Libby the right to compel these reporters to testify, and compel any possibly relevant testimony. 

The only possible battle is the weighing of Mr. Libby's Sixth Amendment rights against a public interest to allow reporters to refuse to tesitfy; since this is placed against Mr. Libby's Constitutional rights as opposed to the "public interest" when a prosecutor attempts to compel testimony, it is hard to conceive of any circumstance where called reporters will not be compelled to testify. 

The only out would seem to be if the judge decides that the prosecution of Mr. Libby is of less value to the public interest than the reporters refusing to testify; otherwise the reporters would have to somehow  prove that their testimony is irrelevant without actually giving it.

Comments

[maliszew.livejournal.com]

You are absolutely correct. However, journalists have, for more than a generation, lived under the presumption that their profession is somehow privileged by the Constitution and that this presumption is essential to the preservation of democracy. Many people, including judges, share this presumption and it is slowly being used in the interpretation of the law, so much so that I'd not be surprised if various have been and will be decided in accordance with it.