Carol Platt Liebau

Saturday, February 19, 2005

How proud I am to have clerked for Judge David Sentelle for the U.S. Court of Appeals for the D.C. Circuit! He is the author of an opinion rejecting claims of a First Amendment privilege protecting journalists from having to testify before a grand jury.

Judge Sentelle did what a capable judge -- not infected by "legislation from the bench" disease -- should do: He relied on Supreme Court precedent that has already spoken to this issue. And now, if Congress disagrees, they can change the law to provide some kind of privilege for journalists.

Here's the thing, though: I'm not sure why journalists are (or should be) immune from the duties that US citizens in virtually every other "walk of life" are subject to: That is, being required to testify before a grand jury when they have knowledge that a crime has been committed.

And the "journalistic community" has picked an incredibly poor case to litigate the issue on. Journalists and liberals (like there's a big difference, most of the time) have spent months decrying the monstrous "crime" of "outing" Valerie Plame. If it's such a terrible crime, then their responsibility to help the prosecution of those responsible is even greater.

Obviously, journalists are getting the vapors over this. One commentator for CBS News (linked above) laments "how little energy both Judge Sentelle and Judge Henderson spent considering what journalists do, why what they do is important, why the First Amendment matters, and why the judiciary is uniquely qualified to evaluate these sorts of problems on a case-by-case basis." Sometimes I suspect that journalists think they are the most important people in the world.

Maybe I'm wrong -- maybe some kind of federal shield law is a good idea. So let Congress (i.e. the legislative branch) pass one -- and stop attacking good judges who are simply refusing to pass legislation from the bench.


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