The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
James Goodale was the general council to the New York Times when the Supreme Court ruled they could continue to publish the Pentagon Papers. He states:
The founders of the United States enacted the First Amendment to distinguish their new government from that of England, which had long censored the press and prosecuted persons who dared to criticize the British Crown. As Supreme Court Justice Potter Stewart explained in a 1974 speech, the "primary purpose" of the First Amendment was "to create a fourth institution outside the government as an additional check on the three official branches" (the executive branch, the legislature and the judiciary).
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The freedom of the press serves as an additional check. Case law has determined time and again that the amendment protects journalists and allows them to perform this function. One of these cases was the Pentagon Papers. Goodale recaps:
The day after our series began, we received a telegram from the U.S. attorney general warning us that our publication of the information violated the Espionage Law. The attorney general also claimed that further publication would cause "irreparable injury to the defense interests of the United States."
The government then took us to court, and convinced a judge to issue a temporary restraining order which prohibited the Times from continuing to publish the series. Following a whirlwind series of further hearings and appeals, we ended up before the Supreme Court two weeks later. The court ruled that our publication of the Pentagon Papers could continue. The court held that any prior restraint on publication "bear[s] a heavy presumption against its constitutional validity," and held that the government had failed to meet its heavy burden of showing a justification for the restraint in New York Times Co. v. United States, 403 U.S. 713 (1971). We immediately resumed our publication of the series, and we eventually won a Pulitzer Prize, the profession's highest honor, for the public service we performed by publishing our reports.
So in this hallmark case, we have a newspaper publishing documents to prove that the government was misleading the public about the Vietnam War, followed by the government attempting to silence the criticism. Then, "failing to meet its heavy burden of showing a justification for the restraint", the paper was allowed to continue to publish. Goodale goes on to document other case law upholding press freedoms, including parody, robust uninhibited debate, and laws intended to punish the press.
However, there are restrictions also supported by case law. In fact, one in particular speaks directly to Judith Miller.
BRANZBURG v. HAYES, 408 U.S. 665 (1972)
In Kentucky in 1969 a reporter published a story showing illegal drug use. He was subpoenaed to appear before the grand jury to testify. Like Miller, he promised confidentiality to his sources. Like Miller, he tried to violate a court order to testify. And like in Miller's case, the Supreme Court supported the argument that
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
The spirit of the first amendment is not to allow a journalist to be the only citizen who can't be compelled to testify when they have witnessed a crime. The difference between protecting a source that exposes a wrongdoing, as in the Pentagon Papers, and protecting a source who has committed a crime, as with Miller, is not only crystal clear, but supported by case law. Wilson was the whistleblower, he is protected. The scumbag that outed a CIA asset is a criminal and is not protected. Remember, too that the courts did not compel Woodward and Bernstein to reveal deep throat, but the criminal, Nixon, had to release the tapes--despite executive privilege claims.
A press is free to report, debate, parody, and criticize. It is not, however, free to protect a criminal. Reporters are not free to ignore court orders to testify in front of a grand jury. No one is. The only one we are free not to testify against is ourself. Journalists must make the same decision we have to make, follow a court order or go to jail. Period. Many journalists have done it, that is their decision, but the law doesn't protect them from ignoring court orders-- it does, however, limit the price they have to pay to 18 months jail time.
P.S. In my research I came across a great Thomas Jefferson quote . He said many things about the freedom of the press, but this one stuck me and reminded me of Miller--not for protecting a criminal, but for her propaganda and lies published as she was beating Bush's drums for war.
"The most effectual engines for [pacifying a nation] are the public papers... [A despotic] government always [keeps] a kind of standing army of newswriters who, without any regard to truth or to what should be like truth, [invent] and put into the papers whatever might serve the ministers. This suffices with the mass of the people who have no means of distinguishing the false from the true paragraphs of a newspaper." --Thomas Jefferson to G. K. van Hogendorp, Oct. 13, 1785. (*) ME 5:181, Papers 8:632
Sound familiar?