Anthony Lewis: Think, Floyd, Think!

Over at the New York Review of Books, Anthony Lewis gives a wonderful look at privileges and the press in his review of Floyd Abrams' "Speaking Freely: Trials of the First Amendment." It's not Grisham, for sure, but should be interesting for anyone who ever took Journalism 101.

Abrams is -- as the article pegs him -- the "the country's leading practitioner of First Amendment law," and, of course, serves as the lawyer for the New York Times' Judith Miller in the Plame leak case He also served as Time Magazine's Matthew Cooper lawyer for the majority of the case as well, until Cooper went in a different direction just a short while ago.

While calling it "a fascinating book," Lewis raps Abrams' fingers with this: "Lawyers in constitutional cases must not let grand visions of establishing new constitutional theory obscure their first responsibility, which is to win the case for the client on any available ground. Justice Brennan used to say that the most important quality needed by a Supreme Court justice was the ability to count to five. That is, he or she must be able to stake out a position that will attract a majority on the Court. Of course any justice may rather be right, in his or her eyes, than make concessions needed for a majority. But that option is not properly open to a lawyer."

Lewis wasn't talking on his current endeavor, but his earlier cases. But it is extremely prescient given the headlines today.

In his review, Lewis makes a great point later in the article: "The issue of confidential sources cannot be resolved, I fear, in a way that satisfies the needs of both journalism and the law. There is no doubt that journalists must sometimes rely on confidential sources. The press has overdone the use of unnamed sources, and that can endanger its credibility— as the recent flap over Newsweek's Koran item illustrated. But on profound matters reporters may properly invoke confidential sources, for if they were not to do so, official wrongdoing would never be uncovered: Watergate provides a persuasive example. And if a reporter promises confidentiality, he or she must keep the promise. But it does not follow that the law must always back off from an attempt to discover the sources...

"Reputations can easily be ruined by false reports in the press. Do we really want the authors of defamatory articles to be able to hide behind alleged anonymous sources? And the argument that journalists should be given a privilege against having to testify, whether by judicial decision or a new federal shield law, courts another danger. It would risk adding to the already evident public feeling that the press thinks it is entitled to special treatment. The press does not need, right now, to separate itself further from the public. Any privilege that is won should surely be qualified, not absolute, with judges balancing the interests...and with his respectful care."

Could not recommend this article more-- fascinating, a good reminder with everything happening today.