Quick points about the controversy over subpoenaing journalists and the discourse around that.
• We have two live controversies: DOJ subpoenas to NYT reporters over stories about the Qatar jet and subpoenas to former Fox reporter Catherine Herridge in a Privacy Act case against FBI agents who leaked a person’s name and information to Herridge. They are at opposite ends of the litigation process. DOJ issued the subpoenas about two weeks ago and any litigation to quash the subpoena is just beginning. Herridge is at the end of the line–the court refused to quash the subpoena, she violated the subpoena, the court held her in contempt, and the higher courts refused to stay the contempt order; all that remains is whether she cures the contempt by complying with the subpoena, pays the $ 800/day fine, and faces a higher sanction for non-compliance.
The same apparent principle applies to both cases–the right of journalists not to disclose sources. Yet most liberal hand-wringing focuses on the Times while ignoring Herridge.
It is tempting and easy to see this as partisan. Liberals hate the Trump Administration and distrust this investigation, thus they decry the threat to a free press. But liberals also hate Fox News and government officials using Fox News to launder smears of a private individual, thus they are less outraged by the subpoenas. Needless to say, this reflects the approach of many to the First Amendment–protection for those whose speech I like.
A second possibility is to see government-issued subpoenas in a government criminal investigation as more threatening than a third-party subpoena in a private civil action. But this seems to get it backward. To the extent any qualified privilege requires a balancing of interests, the need for the information would seem to be greater in a criminal case that serves a greater public interest than in a private damage action.
• The criticisms are a mess, conflating the First Amendment as law with the first amendment as norms and conflating descriptive arguments about the law as is with normative arguments about what they wish the law was. This piece by CNN’s Elie Honig exemplifies: Even if the Branzburg dissent has “aged” better than the majority, it remains the dissent. Thus the Trump Administration (and, again, no mention of Herridge in this piece) is not ignoring First Amendment principles as opposed to executive norms and constraints. One can believe these constraints are important and even motivated by first amendment values; it takes another step to say these subpoenas violate the First Amendment as law.
Even if the First Amendment creates some journalist privilege, it is not absolute; at best it requires some sort of balancing. Which means, of course, that sometimes the balance will favor the journalist and sometimes it will favor the party seeking the information. It thus is too late to complain that the Harridge subpoena is some affront to the First Amendment; several courts considered and rejected her First Amendment arguments. Similarly, it is too early to complain that the DOJ subpoenas violate the First Amendment; the Times may prevail on its First Amendment arguments.