This morning the Senate Judiciary Committee held a hearing on
the "reporter shield" law. I know everyone here is still very focused on the Rove story, and I thought people might be interested in how the Senate is playing a role in the story. The issue of journalistic privilege is complicated - it creates some real questions about who should be protected, and how. Do journalists really need the same privilege as lawyers? The clergy? Senator Kennedy made a statement at the hearing, and addressed the Rove issue directly in his comments on journalistic privilege. His comments aren't extensive, but are interesting in the larger context of this story.
The Justice Department is opposing the bill - 31 states already have a shield law, and this one has support.
Senator Kennedy's statement:
"This is not about partisan politics. The First Amendment is one of the great pillars of our freedom. As we wage the war on terrorism to protect the nation for the future, it is also our responsibility to protect the ideals that America stands for here at home and around the world. This is no the time to restrict fundamental constitutional rights.
As Thomas Jefferson famously said in 1787, when the Constitution was being drafted, "Were it left to me to decide whether we should have a government without a newspaper or newspapers without a government, I should not hesitate for a moment to prefer the latter."
Freedom of the press is essential to the public's access to information. A free press is an important part of checks and balances on government and an important remedy for excess secrecy in government, and journalists have an indispensable role in fulfilling the public's right to know.
I remember a speech by Justice Bill Douglas when I was in law school. A student asked him what the most important export of the United States is. He said, without hesitation, "The First Amendment."
The reason why is obvious. It gives life to the very concept of our democracy. It protects the freedoms of all Americans, including the right to criticize their government.
The long-standing privilege that protects journalists and their sources is solidly grounded in the First Amendment and the public's right to know. Like the privileges that protect the relationship between husband and wife, lawyer and client, doctor and patient, and priest and penitent, and like the First Amendment itself, the privilege is not absolute but exceptions are extremely rare, and Congress should be vigilant in protecting it against abuse.
Clearly a score was being settled when Valerie Plame's name was leaked to the press. Notwithstanding the Bush Administration's dissembling, it now appears that Karl Rove has been a subject of this investigation, at least as far back as his grand jury testimony last October, a month before the election. If that is the case, then the White House has been misleading the American people about its involvement in this investigation. That's wrong and it's an abuse of power. But we need to be extremely cautious in dealing with journalistic privilege under the First Amendment as part of the investigation, and it may well be that federal legislation is needed to protect that basic privilege, just as many states have done. I care deeply about our First Amendment freedoms, and I look forward to the testimony of the witnesses on these important issues."