Editor: Mr. Garbus, would you tell our readers something about your background and professional experience?
Garbus: I am a partner in the Litigation Department of New York-based Davis & Gilbert, a firm widely known for its representation of marketing communications, publishing and media companies. I have been involved in First Amendment cases for close to four decades. I represented Daniel Ellsberg in the Pentagon papers case, and I have represented most of the leading publishers in America on First Amendment, copyright and journalistic privilege cases.
Editor: Speaking of which, you have recently been cited in the press in connection with journalistic privilege and the Valerie Plame case.
Garbus: As everyone knows, Joseph Wilson had investigated, at the behest of the CIA, the purported purchase of uranium by Sadaam Hussein from Niger and concluded that it had very probably never occurred. Wilson wrote an op-ed piece in The New York Times that he had made such a report to the CIA. Thereafter, the syndicated columnist Robert Novak identified Valerie Plame, Wilson's wife, as an undercover CIA agent. He had obtained this information from a government source, and his story resulted in outrage at what was perceived as a government attempt to punish Wilson for his challenge to its claim that Iraq possessed weapons of mass destruction. Since revealing the identity of an undercover CIA agent is a crime, the affair resulted in a federal investigation and the questioning of both potential sources within the government and reporters. Among those subpoenaed were Judith Miller of The New York Times, who has resisted disclosing sources on the basis of journalistic privilege.
Editor: But it was Robert Novak's column in The New York Times that created the furor. He is not facing criminal penalties.
Garbus: No, and that is what makes the Miller element in this matter so interesting. The statute here, the Intelligence Identities Protection Act, became law in 1982 as a result of two books being written which deliberately disclosed the identities of CIA agents, the intent being to harm the CIA. The statute imposed criminal penalties on those who leak such information. Everyone knows that it was Novak who was the recipient of the leak, and that he is not facing prison time. Now, if he was subpoenaed and took his Fifth Amendment right, the interesting issue is whether he has an obligation to protect Miller from prison time since he provided her with the information. I believe - in light of the fact that the leak was motivated and used for political reasons, as was the case which led to the adoption of the Intelligence Identities Protection Act - that Novak rather than Miller is deserving of punishment. I believe, in addition, that Miller will face jail time if she refuses to disclose the source of the leak. Last October, indeed, she was convicted of contempt and ordered to prison, a ruling that is now under appeal. I do not believe the appeal will be successful.
Editor: Can you provide us with an overview of journalistic privilege?
Garbus: Journalistic privilege is a very complicated issue. I take a very broad view of the First Amendment. I do not think, for example, that libel laws should come into play in the political arena, and that any comment on political speech is an exercise in free speech. In fact, the present rule is that if you can prove malice against a journalist, his or her comment may be punished. The complexity attendant upon journalistic privilege, however, is no better illustrated than by an attempt to square the Valerie Plame case with that of Wen Ho Lee.
Dr. Lee was a Los Alamos scientist who had come to this country from China. He was suspected of having appropriated secret information from his workplace. Whatever the origin of these suspicions, the case did represent an opportunity for lobbyists hostile to China to attack Chinese interests. The investigation went on for two years; during which time there was considerable information appearing in the press about unconfirmed sources underlying U.S. intelligence agency suspicions. Ultimately Lee was charged with treason. When the case was brought before a judge, however, the government was forced to admit that it had nothing on him. The upshot was a deal in which Lee did not receive any jail time and everyone understood he had done nothing wrong. The judge castigated the government. Lee then turned around and brought an action against the government for having leaked unconfirmed allegations to the press and thereby caused him immense injury. In trying to prove his case, he subpoenaed five reporters, all of whom claimed the privilege. At the moment, fines of $500 a day have been imposed on each of them, and the case is under appeal to the same court that convicted Judith Miller. The question is whether the journalists should be required to waive the privilege in a civil action. I think there is a very good chance that the court will decide that the First Amendment is not well served in requiring journalists to give up the privilege in a civil case. To my mind, however, there is no question but that Dr. Lee has suffered greatly, and the government certainly had no overriding purpose to serve in seeing to the publication of rumors. I would come out for removing the journalists' privilege under the facts of the Wen Ho Lee case.
Editor: What are the competing interests here? Can you weigh for us the factors that go into the First Amendment's protection of the public's right to know, on the one hand, and the government's interest in investigating and, if appropriate, punishing criminal acts?
Garbus: When these two interests clash directly, which one should prevail? In the Valerie Plame case, the Supreme Court will rule that Judith Miller is not entitled to assert the privilege because the government's interest in prosecuting this crime outweighs the journalist's privilege. In the Wen Ho Lee case, however, I believe the privilege should not be permitted to stand because the leaked information was used deliberately and knowingly to hurt someone. A different set of facts, however, might tip the scales in a different direction.
These two cases, when finally determined, are going to have an impact on the profession of journalism, particularly on those journalists who do not have the backing of a large news organization. There are varying degrees of support for freedom of the press in our country, and there are judges who might be inclined to make an example of a recalcitrant journalist in certain situations.
Editor: Another First Amendment issue, which has attracted a considerable amount of attention recently, concerns government-provided information which is packaged and disseminated as news. Can you draw for us the battle-lines on this issue?
Garbus: It is a crime to pay a radio station to play your music because the listener thinks he or she is hearing a song as a consequence of public demand. It is called payola. Of similar impact is information that originates with the government, that is paid for by funds not specifically authorized by Congress, and is disseminated without identification as to source. What occurred here is that the General Accounting Office discovered that the Bush administration used appropriated funds to develop prepackaged news stories without identifying the source - all in violation of the prohibition on publicity and propaganda included in every Consolidated Appropriations Act since 1951. The GAO thereupon reaffirmed its opinion to the effect that it is improper for the government to issue such reports as news without alerting the public that it, the government, had paid for them. The great danger is that increasingly the public is only hearing the government's point of view. Many of the hard news shows in the media are becoming softer because it is both easier and cheaper to utilize government releases rather than rely on their own reporters. The administration has justified the practice by stating that the Department of Justice approves its position, and that it takes precedence over the GAO. The FCC, however, has issued its own opinion indicating the administration's position is wrong. The administration is taking a stance that is ominously similar to that of the Soviet Union concerning the distribution and control of information.
The government's appropriation of certain terms, and the ways in which the media are manipulated into using them - "coalition forces" is a good example - reflects this presentation of a particular point of view as impartial and objective truth. There is a real question in my mind as to whether our democracy is going to survive unscathed when the First Amendment is so susceptible to manipulation by the government and by money interests.
Editor: Congress - and on both sides of the aisle - has traditionally opposed an expansion of the power of the Executive Branch. And the Supreme Court has been the traditional guardian of the public's "right to know." Surely we can anticipate a reaction from these quarters?
Garbus: This is the first time since the early 19th century that all three branches of the government have been controlled by one party. The extent to which the Executive Branch, Congress and the judiciary are in lockstep represents a real challenge to democracy. In the present situation the checks and balances on which our system has relied are absent, and this constitutes a real threat. As does the blurring of the line separating church and state, which has also been crucial to our nation's success. I believe that we confront a series of challenges - concerning the checks and balances built into our form of government, the separation of church and state, and the place of a free press in our society, among others - that are more important than the ones faced during the McCarthy era or during the two world wars, when restrictions on speech were imposed.
Editor: Is 9/11 and the war on terrorism playing a role here?
Garbus: The Patriot Act, and all that derives from it, is not a temporary expedient. It is in the process of becoming part of our political culture, and people accept the necessity for it. In times of crisis people accept intrusions on their personal liberties, but we have never experienced such intrusions as a permanent condition. That is new. The government that our founding fathers established had no inkling of wiretaps, electronic surveillance, control and manipulation of information, detention without a formal charge, and so on. The temptation to utilize such means - and, indeed, to justify that use as necessary to our safety, even survival - represents one of the most serious challenges we have faced over the entire course of our history. The First Amendment is at the very heart of how we define ourselves as a nation. I would hope that we think very carefully before attempting to redefine ourselves.
Published June 1, 2005.