Hewitt - Kudlow & Company, with Powerline's Scott Johnson, was great fun. Radioblogger has posted a transcript of our conversation on the subject of "are bloggers journalists?' Larry Kudlow, also a blogger, is turning his how quickly into a conservative think-tank meets market-wrap, and it is great niche programming. Larry knows who he is, and when he invites John Fund, Jay Nordlinger, and Michael Medved on the same show as we two, he clearly is telegraphing that CNBC has at least one show that center-right viewers will enjoy. Radio programmers learned long ago you can't be in the middle. larry and his team have that figured out well ahead of many of his competitors.
Blog shield boundaries
As promised, here's the transcript from Kudlow and Company on CNBC, featuring Hugh Hewitt and Scott Johnson, moments ago.
LK: So, is government testing the boundaries of these sheild laws. If so, should bloggers, possibly a new kind of journalist, I think so, should bloggers worry, too? Joining me now are two of the best blogger out there. Hugh Hewitt, nationally syndicated talk radio host and author of Blog: Understanding the Information Reformation that's changing your world. And Scott Johnson, co-founder of Powerlineblog.com, Scott's first hit on the show. Great to see you, Hugh. Thanks for coming back. Let me just start with the Judith Miller/Matt Cooper thing. Matt Cooper of Time. In your opinion, Hugh, should they be asked to divulge their sources in a grand jury? Is the grand jury really secret? And if they don't, should they be going to jail in your view?
HH: Yes, they should answer any question put to them by a legitimate U.S. attorney or assistant U.S. attorney operating in front of an appropriately convened grand jury. Like Susan MacDougall, the old Bill Clinton associate, they are the same as any other citizen. If you do not answer questions before a federal grand jury, you go to jail for contempt. Journalists, even though they have certain protections in some states with shield laws, have none before a federal grand jury. The Supreme Court disposed of that a long time ago, and they're just stalling.
LK: Scott Johnson, let me ask you the same question. Should they in fact be headed for jail if they won't divulge? And secondly, I thought this kind of thing, a national security charge, bringing them in and asking them for sources under the threat of jail, I thought this was something for clear, traitorous type of thing like the Agee case years ago and so forth. This one just doesn't strike me as much of anything. What's your take?
SJ: Well, I've got a couple of points to make about that. I have a great idea for a situation comedy called Tales of the Mainstream Media, Larry. You ask a good point. This investigation derives from the Intelligence Identities Protection Act of 1982, which was enacted by Congress in response to Philip Agee. So that's the law that's in issue here. And in the summer of 2003, the New York Times thought it was a national emergency that John Ashcroft appoint a special prosecutor to investigate the identification in Robert Novak's column of Valerie Plame as a CIA employee. Well it turns out, very interestingly, after Attorney General Ashcroft followed the New York Times' advice, that the New York Times itself, in the person of Judith Miller, has evidence that bears on the possible commission of this crime. Now I don't think any crime was committed, or that any special prosecutor should have been appointed, but this is a problem that the New York Times, it's largely of their own making, and if you have any sense of humor, there's tremendous potential for comedy here.
LK: And other liberal editorialists in the mainstream media sort of agree with that. Hugh, let me go to you. On the question of bloggers, federal circuit court Judge David Sentelle, he issues this comment. He says, "Do we just protect the Time Magazines of the world or the New York Times? Or do we extend that protection to others? The owners of a desktop printer producing a weekly newsletter to inform his neighbors, etc.? Perhaps more the point today," Sentelle asked, "Does the privilege also protect the proprietor of a weblog? The stereotypical blogger, sitting in his PJ's, at his personal computer, posting on the world wide web?" Should this encompass bloggers? And I guess it's a two-fold question. One is, are bloggers in the same boat as Judith Miller? Or secondly, are bloggers not in that boat at all?
HH: Well, Larry, when I read Judge Sentelle, he's a very fine judge, when I read his opinion, I thought, I wondered if he's thinking of William Lloyd Garrison in the Liberator, which was pretty much a one or a two person operation. Or maybe Ben Franklin or Tom Paine. Most of the early journalists in this country, for whom the First Amendment was designed, ran one or two person shops, put out broad sheets, peddled them for a penny a piece, sometimes they didn't get paid, they did it because it was a passion. "It's a craft," as the late Michael Kelly said. You probably knew him, Larry.
LK: I did. Wonderful. Wonderful.
HH: Great journalist, great man. And he would always come on my radio show and remind people that journalism isn't a profession, it's a craft. And whether or not you get paid for it, if you're reporting or observing or opining on the news on a regular basis, you're a journalist. So any privilege that a journalist enjoys applies to anyone who does that. Whether it's you, Larry, or me, or Scott at Powerline, or any of the other bloggers out there who are reporting, observing, or opining on the news on a regular basis.
LK: Well, Scott, let me ask you if you agree with Hugh. And if, in fact, bloggers are put in the same category as the MSM-type journalists and so forth, if you withheld, would you have withheld, and would you be willing to go to jail for withholding your sources, if you're put in that Judge Sentelle/Hugh Hewitt category?
SJ: Well, I would hope I would keep promises, and that's the position that Judith Miller is in. It may have been an improvident promise, but I'll respect her for keeping it. A promise of confidentiality that involves evidence relating to the commission of a crime. But the mainstream media is in a state of hysteria about something that really isn't very controversial. They're being treated as a citizen like anyone else, and the hysteria derives from the fact that they've got multi millions of dollars invested in printing plants, where as the competition, like Hugh and I, our publishing, our cost of operation is about thirty dollars a month. But I think we've broken as significant a number of stories on our site in the past year as any of these big dogs in the mainstream media.
LK: Has anyone come to you asking for sources? Come to you from the government that is asking for sources, Scott?
SJ: Well, we've gotten lots of tips, and we have lots of, both in law enforcement and in government sources, and we've gotten calls from many folks with interesting information like Secretary Watt, who'd been defamed in the pages of the Minneapolis Star Tribune. We broke a story on our site about a quote that had been fabricated in a column written by Bill Moyers for the Minneapolis Star Tribune.
LK: Hugh Hewitt, I don't understand brother Novak. He's an old and good friend of mine, but I thought he'd be in the same boat as Judy Miller and Matthew Cooper. Apparently, he's not. Why is that?
HH: I don't know how the investigation is proceeding. It's United States attorney Peter Fitzgerald, I believe, out of Chicago, who's been tapped for this investigation. I can't figure that one out, either. Maybe he hasn't been called before the grand jury yet. Maybe it's a matter of time, or maybe he divulged his source. Judith Miller, Matt Cooper, they don't have to go to jail if they talk. Now I'm with Scott. If you make a promise, you stick with the promise. Lawyers generally are very, very good about understanding what the ethics of the situation require of them. But if they made, as Scott says so wisely, an improvident promise, they've got to stick with it. Maybe Novak didn't make that promise, or maybe he hasn't been asked yet. It's very interesting.
LK: Or maybe he didn't stick with it.
HH: That's possible.
LK: Maybe he has given testimony. I'm not making judgment here. But that's another option in this story.
HH: Yes it is.
LK: Scott, let me come back to you. Put your legal hat on again for us, please. You've got 31 state shield laws, they still don't clarify the bloggers' position. Senator Lugar is looking at a federal shield law. Should we have a federal shield law? And if we do, what ought to be in it, in brief?
SJ: There absolutely should not be a federal shield law. Look, if Congress thought it was important to protect the identity of CIA operatives and enact laws similar to that, no one should be protected from facilitating the violation of that crime because they promised confidentiality to a source who wants to blow...to undertake acts that conflict with really important federal national security policy.
LK: We've got to go. You guys have been great. This deserves much more time. It deserves hours and days, and it probably will. I look forward to reading about it. Hugh Hewitt, Scott Johnson, thank you ever so much for giving us some time. |
