It's polite to let people know when you're dropping off for awhile. Some people worry. Not me, of course, but you know how touchy feely some of these guys are....
I was saving this for you in case you missed it. Your memory of what happened here appears to have been more accurate than mine. Journalists have been defending Vanessa Leggett, she even won a PEN award. I hope her book is a best seller.
THE RIGHT TO REMAIN SILENT
Keeping Ms. Leggett Quiet
The book the Justice Department doesn't want you to read.
BY GLENN HARLAN REYNOLDS
Thursday, April 25, 2002 12:01 a.m.
By refusing to hear freelance writer Vanessa Leggett's appeal last week, the Supreme Court put to rest, at least temporarily, one of the more curious episodes in modern journalism--and one that does little credit to most of its participants.
Ms. Leggett was jailed for 168 days last summer after she refused to turn over her notes for a book on the murder of a Houston socialite, Doris Angleton. Mrs. Angleton's husband was tried on state charges and acquitted, but the possibility of federal prosecution remained. When federal prosecutors subpoenaed Ms. Leggett's records and notes, she refused to comply, citing the First Amendment. The Justice Department responded that Ms. Leggett had no right to resist a subpoena, and started contempt proceedings that eventually led to her being imprisoned.
The story that got the most ink was that the Justice Department, having subpoenaed all of Ms. Leggett's records and notes--not merely copies--refused to recognize that she had a First Amendment defense because it claimed that she was not a "professional journalist." This is a legitimate story, but all of the attention it received distracted most people from the real oddities of this case.
The Justice Department's first odd behavior--the subpoenaing of all copies of Ms. Leggett's work--seems, as Dave Kopel has written in National Review, to indicate that it was less concerned with finding out what she knew than with keeping everyone else from finding out what she knew.
Contrary to frequent assertions from professional journalists, there is no special First Amendment protection for members of the press. Such protections, to the extent they exist at all, exist only as a matter of statutory or regulatory grace. Under the First Amendment, everyone enjoys the same protection as "professional journalists." Ms. Leggett probably had First Amendment grounds for refusing to turn over all of her notes, but not for refusing to testify to a grand jury, and not for refusing to make her notes available for copying (rather than seizure). Her refusal to testify may make her a heroine to journalists, but it does not make her a First Amendment heroine.
The Justice Department's behavior was thus doubly odd. The first oddity was requesting her material in such a way as to block work on her book. The second oddity was making an argument based on her status as a nonjournalist. As a matter of internal policy, the Justice Department often avoids asking journalists to identify their sources, but that has nothing to do with the First Amendment.
At any rate, a more relevant standard than "professional journalist" (though also not a First Amendment doctrine) would seem to be found in 42 U.S. Code section 2000aa, which forbids law enforcement agents from seizing "work product materials" or "other documents" possessed by a person "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communication."
This statute (which, oddly enough, neither the Justice Department nor Ms. Leggett's lawyers mentioned in any press accounts I could find) speaks to purpose, not status. Whether or not you're a "real" journalist might, I suppose, have some small relevance in deciding whether you really plan to disseminate the work to the public, but that's not the test: So long as you have the necessary purpose, that's enough. (Interestingly, Ms. Leggett had in fact written two previous nonfiction works, both published by the FBI). There are exceptions to this statute, involving child pornography, national security, and immediate threats to life, but none would seem to apply here.
What it boils down to is this: Federal investigators tried to get Ms. Leggett to agree not to publish her book without their consent; when she refused, they subpoenaed and jailed her. Ms. Leggett was forbidden to write while in prison, and in fact was punished for authoring a "My Turn" column for Newsweek. It is impossible to know, but the interest here seems to be the avoidance of embarrassment. Ms. Leggett's book is likely to publicize corruption or incompetence, or both, on the part of local and federal law-enforcement agencies in Houston.
As for the absurd argument that Ms. Leggett was not a "working journalist," this appears to be a divide-and-conquer strategy. Perhaps the Justice Department hoped that professional journalists would not side with a freelancer who lacked connections with Big Media institutions.
If so, they guessed wrong: Ms. Leggett has become a press hero, and recently received a PEN award for her ordeal, which has turned into a major embarrassment for the FBI and the Department of Justice, who look like thugs. And incompetent thugs, at that, since the book will now receive far more attention than it would have received had they treated Ms. Leggett properly.
There's only one question for Attorney General John Ashcroft: Why are the people responsible for this debacle still working for him?
Mr. Reynolds, a professor of law at the University of Tennessee, publishes the Instapundit.com Web site.
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