A couple of First Amendment attornies are predicting the Plame affair winds up before the Supreme Court.

“I think we are headed for a showdown and it would not surprise me in the least to see half a dozen reporters sitting in a jail in D.C.,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which monitors such cases. She believes Time magazine and other media outlets “will be willing to take this all the way to the Supreme Court because the atmosphere here has become so difficult for journalists to promise confidentiality that the stakes are too high.”

(Snip)

Sandra Baron, executive director of the Media Law Resource Center, warned that the prosecutor’s ongoing efforts to demand information from reporters in the Plame case could create a dangerous atmosphere for journalists, and cause some sources to dry up. “My fear is they will continue to subpoena reporters looking for sources,” she said. “Whenever you have that, it puts the entire reporting community and sourcing community on edge. It suggests open season for prosecutors who are looking for a short cut for answers in a grand jury investigation.”

Again, what’s important to remember here is the chilling effect a crackdown on confidential sources could have across the media. Fair or not, abused or not, the media has to be trusted to keep its word. The only way this happens: by the media keeping its word. If reporters are compelled to testify, or simply rollover out of convenience, how could anyone trust the media to “blow the whistle” on scandal or abuse of power? Daniel Ellsberg never would have come forward with the Pentagon Papers if he couldn’t trust the media to publish the report without fear of reprisal from authorities. Today, it’s 50/50 whether a reporter would dutifully bow to the federal government or risk their careers, even lives, to point out injustice. If Russert and Cameron are any indication, we’re in trouble.

Also, in the comments section, someone mentioned Oliver Wendell Holmes’ famous “Yelling fire in a crowded theater” line. This is commonly misunderstood as a limit on free speech. In fact, Holmes simply meant that yelling “Fire!” to induce panic, rather than thought or reflection, was not speech — and is therefore not protected by the First Amendment.

Alan Dershowitz explained it well in the Atlantic Monthly (conveniently cached by Google):

The man who shouts “Fire!” in a crowded theater is neither sending a political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The message “Fire!” is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection. It is—as Justice Holmes recognized in his follow-up sentence—the functional equivalent of “uttering words that may have all the effect of force.”
Indeed, in that respect the shout of “Fire!” is not even speech, in any meaningful sense of that term. It is a clang sound—the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire.

Sorry for these tangents and diatribes. Don’t worry, McClusky will be back soon with more Daily Show video. Thanks for the feedback.