they are based on illegally leaked documents -- and the paper fears the consequences faced now by jailed New York Times reporter Judith Miller.Brewed Fresh Daily and Democracy Guy are challenging the PD and the reporters involved to hand the stories over to be blogged. Their challenge underscores the general blogger reaction that Clifton is, in his own words, being a chicken shit.
Lawyers for the Newhouse Newspapers-owned PD have concluded that the newspaper would almost certainly be found culpable if the leaks were investigated by authorities.
I have a different question. It appears from the Editor & Publisher quote above, and from the way Clifton talked in the New York Times story, that the PD's lawyers believe the paper would be breaking the law just by printing the material they've somehow acquired. So this isn't just a matter of protecting a source who could get in job or legal trouble. Clifton is complaining that the jailing of Judith Miller has made the PD reluctant to break the law itself, for fear of being prosecuted.
What kind of material might this be? There are two obvious possibilities: documents classified for national security reasons, and documents protected by court order (like grand jury testimony or somebody's sealed records.) The latter seems more likely, especially since Clifton is quoted using the phrase "under seal" in the Times article.
So here's what Clifton seems to be saying: The press should be able to break the law by publishing classified documents or violating court-ordered confidentiality as we see fit, without fearing prosecution. Judith Miller sitting in a jail cell makes us nervous about this. So we're holding back on publishing two stories that are really, really important because we'd have to break the law and "the newspaper" (publisher Alex Machaskee?) isn't willing to risk jail for that.
I'm sorry, but this doesn't sound to me like it's about either "freedom of the press" or "protecting whistleblowers". It's about wanting to commit civil disobedience without consequences. It's about wanting to be above the law.
Despite all the indignant editorializing about Miller in the last few days, it doesn't seem that her case is really about protecting news sources (let alone "whistleblowers") either. There's endless speculation about what the prosecutors are really after (see this page at TPM Cafe for a sample). But it seems likely that they think Miller took part in at least one conversation before Robert Novak published his Plame column, in which Valerie Plame's identity as a covert CIA agent was communicated (maybe by Miller to another party), and someone sought someone else's cooperation in publicizing it. If correct, this would have put Miller in the presence of two criminal acts, possibly as a participant -- the revelation of a covert agent's identity, and the solicitation of the crime of making it public. Should she be able to hide her knowledge of this incident behind "press freedom"? Do reporters have the freedom to commit or protect felonies?
Suppose a reporter gets a call from a "source" who tells her a terrorist bomb is going to go off on a train in two hours and he'll tell her the location -- so she can witness it -- if she agrees to keep quiet until it happens, and protect her source's identity. Suppose she doesn't agree to the deal, but also doesn't call the police immediately and tell them about the call. Fifty people are killed. Does the First Amendment make her immune from prosecution?
Think it over. And think about whether you want the PD to feel free to publish your sealed court records or secret grand jury testimony, without fear of legal consequences, because Doug Clifton thinks they should.
A chilling effect might occasionally be a good thing.
P.S. See Michael Kinsley in the Washington Post this morning.