The Supreme Court's War on Journalism

I spoke not too long ago about the dividends the new Supreme Court is paying for the Bush administration and about Gonzales' long-term legal strategy regarding the Justice Department's War on Journalism, and unfortunately have more to report. In a little noticed story in the Washington Post yesterday, Charles Lane reports on a clever act of plausible deniability performed by John Roberts and his colleagues. Weighing in on the now-closed Wen Ho Lee case, the Court announced Monday that it would not hear any appeals regarding a previous decision by the D.C. Circuit Court which ruled that journalists involved in the Lee case had no legal right to protect their sources.

Being privately negotiated and concluded, the Lee case was over. SCOTUS was not obligated to make any ruling or comment, much less one fraught with so much significance regarding the Court's position on free speech. As the Post describes the smoking gun,

...the justices had met to consider the [journalists'] appeals last Thursday. They knew by then that settlement talks were underway and postponed a decision to allow time for negotiations... Indeed, a day before the court's conference, a court aide contacted Lee's attorney, Brian A. Sun, to check on the progress of settlement talks. Sun said that agreement was very close, according to lawyers knowledgeable about the case. Sun declined to comment. The court was informed of the settlement on Friday.

By deliberately waiting until the case was concluded before they made their announcement, the Supreme Court wanted to make clear where they stood on the subject of journalists' sources without getting into the bother and controversy of making an actual ruling. The Court clearly knew that the case was over, that it was being negotiated privately, and that they had no obligation to say anything. But they did.

In the same way that markets respond to stray remarks by the Fed Chief at a party, so should we be listening and responding to these whispered messages by the nation's highest court. Without making a formal ruling, without creating a paper trail or written justification of its thinking, the Court has now telegraphed to every single lower court in the country its position regarding the protection of journalists' sources. Make no mistake: this maneuver by the Court will without question affect the rulings of lower courts.

The New York Times makes no mention of the Court's announcement in their story on the Lee settlement.