Are we surprised at having to testify?

The appeals court ruling today (story) that reporters Mathew Cooper from Time and the Judith Miller from The New York Times must testify in the Valerie Plame case is wrong in so many ways on a philosophical level, but basically the right call on a down-to-earth, practical, here's the way the current landscape lies political level.

On that high plane of philosophy and discourse, it seems ludicrous to set the press up in a watchdog role, as the Founding Fathers did, and not provide some protection for newsgathering, at least as it involves government activities and possible malfeasance. Certainly there would be some limits (treason comes to mind), which would provide a rollicking good time for us all to debate. But we would at least acknowledge the current absurdity of the law that effectively turns reporters into shadow police whenever a prosecutor desires.

On the practical side, however, those who have been hanging their hopes on the slender thread of some qualified provision for newsgathering from Branzburg v. Hayes have deluded themselves. That qualified privilege is not so much rooted in law as it is in the court of public opinion. And that public opinion has turned on us as we have squandered the capital of trust away.

(Consider the way the NAB has gone on attack mode (Mediaweek story) against research (the quickie summary) from the Norman Lear Center showing that the ads about local congressional races often outnumbered the news stories about those same races on local TV stations' main newscasts last year: Ninety-two percent of the 4,333 regularly-scheduled half-hour news broadcasts studied contained no stories at all about local candidate races, which include campaigns for the U.S. House, state senate or assembly, mayor or city council, law enforcement posts, judgeships, education-related offices and regional and county offices. Eight times more coverage went to stories about accidental injuries, and 12 times more coverage to sports and weather, than to coverage of all local races combined. Update: See the take by Al Tompkins of Poynter on the study.)

Judges are not stupid. They know very well which way public opinon leans. I once had a federal judge tell me he clearly took the climate into account and, while he was willing to get out in front in certain areas, in essence not so far out in front that his back was exposed.

We should not be surprised, then, at this very practical ruling from the Court of Appeals in a time of increased nationalism, where a third of high school students say journalists should have to clear what they write with the government. Until we rebuild our own houses, we will not get a free pass to poke around in others'.

(The Cooper/Miller ruling was the one getting the coverage, but just up the highway in Baltimore, a federal judge dipped from the same reasoning pool to dismiss the Sun's suit seeking to overturn the governor's order banning employees from talking to two Sun reporters. The lead:

The Baltimore Sun vowed Monday to continue fighting an order barring state employees from speaking with two of the newspaper's journalists, despite a decision from a federal judge dismissing the lawsuit the paper had brought against Gov. Robert L. Ehrlich Jr.
In an eight-page opinion, U.S. District Judge William D. Quarles Jr. said The Sun was seeking special access beyond what is granted to the general public, and that the governor was within the law to deny that special access to two writers because he did not like what they wrote about him. (read more) )

(If you'd like a handy little cheat sheet on the major press cases, click here.)