Kinsley Gets It Right

Michael Kinsley's column in today's Washington Post reminded me of the old Michael Kinsley, the guy who, until recently, always seemed to avoid the groupthink that infected the rest of his press corps colleagues. In today's column, Kinsley deftly cuts through the chorus of hyperbolic and self-serving editorializing we've had to endure from the major media outlets in the wake of Judith Miller's imprisonment. Kinsley observes:

"In a ringing and utterly uncompromising editorial
Friday, the New York Times noted correctly that
even its earlier editorials about the need to expose
and punish 'an egregious abuse of power' had warned
against any 'attempt to compel journalists to reveal
their sources.' But these directives are irreconcilable.
The 'egregious abuse of power' was leaking secret
information to journalists. The leaker has a Fifth
Amendment right not to testify. If journalists have a
First Amendment right not to testify, then the
'egregious abuse of power' cannot be exposed or
punished."

This is exactly why privileges are never absolute. That's why we have a crime-fraud exception to the attorney-client privilege. It is why psycho-therapists are allowed to break privilege to prevent harm to third parties. The judge in this case found that a journalist-source privilege did exist, despite the lack of a federal shield law, but he also correctly concluded that the privilege should not apply to cases like this, where the leak itself may well have constituted a serious crime. Kinsley also makes the following important point:

"The Times's Thursday editorial asserts that this
is a matter of "civil disobedience." In societies that
are not democracies or lack a legitimate judicial
system, nonviolent civil disobedience is an admirably
restrained method of attempting political change.
In societies where laws are democratically enacted
and fairly enforced, for the most part, purposely
breaking them needs to be justified by some
enormous injustice. The New York Times is an
influential newspaper owned by a large corporation.
It is claiming an exemption from one of the duties of
citizenship. It has hired some of America's best lawyers
to pursue this claim. And then, when the claim has been
rejected, it encourages its employees to defy the courts
and break the law. If that is civil disobedience, then
almost any law anyone does not care for is up for grabs."

Kinsley is absolutely right, of course. It's too bad there aren't more people in the mainstream media willing to acknowledge it.