Obama’s Escalating War on Freedom of the Press

[hueymahl]

65. Not sure what you are trying to prove . . .

but asking for a constitutional, law based argument on a political board (as opposed to a scholarly legal board) is kind of like asking fans at a football game to do calculus. Yes, some of them can do it, but it really is not the time or the place. I suspect that the purpose of the request is to deflect the attention away from our president by basically arguing that, yes it is legal, but ignoring the discussion of whether it is right or wrong.

All that said, maybe you truly are looking for a reasoned and informed dialog about the relative constitutional merits of Branzburg v. Hayes, 408 U.S. 665 (1972), a controversial 5-4 decision which created as many questions as it answered. And you are in luck, as I happen to be an attorney with a profound interest and respect for our constitution, and thus particularly well suited to have the type of discussion you appear to be seeking.

So, to answer your first question (not really a question, but you did use a question mark) "I can't wait to read the constitutional argument that puts Miller in jail but frees Risen?", I have to look no further than to quote one of the 4 dissents, this one joined by that right-wing nut job justice, Thurgood Marshall :

The Court's crabbed view of the First Amendment reflect a disturbing insensitivity to the critical role of an independent press in our society. The question whether a reporter has a constitutional right to a confidential relationship with his source is of first impression here, but the principles that should guide our decision are as basic as any to be found in the Constitution. While MR. JUSTICE POWELL's enigmatic concurring opinion gives some hope of a more flexible view in the future, the Court in these cases holds that a newsman has no First Amendment right to protect his sources when called before a grand jury. The Court thus invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government. Not only will this decision impair performance of the press' constitutionally protected functions, but it will, I am convinced, in the long run harm, rather than help, the administration of justice.
I respectfully dissent.

I
The reporter's constitutional right to a confidential relationship with his source stem from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlie the Constitution's
Page 408 U. S. 726
protection of a free press, Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 250; New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269, [Footnote 3/1] because the guarantee is "not for the benefit of the press so much as for the benefit of all of us." Time, Inc. v. Hill, 385 U. S. 374, 385 U. S. 389. [Footnote 3/2] Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, [Footnote 3/3] and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment
Page 408 U. S. 727
by providing the people with the widest possible range of fact and opinion, but it also is an incontestable precondition of self-government. The press
"has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences. . . ."
Estes v. Texas, 381 U. S. 532, 381 U. S. 539; Mills v. Alabama, 384 U. S. 214, 384 U. S. 219; Grosjean, supra, at 297 U. S. 250. As private and public aggregations of power burgeon in size and the pressures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression.
A
In keeping with this tradition, we have held that the right to publish is central to the First Amendment and basic to the existence of constitutional democracy. Grosjean, supra, at 297 U. S. 250; New York Times, supra, at 403 U. S. 270.
A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. We have, therefore, recognized that there is a right to publish without prior governmental approval, Near v. Minnesota, 283 U. S. 697; New York Times Co. v. United States, 403 U. S. 713, a right to distribute information, see, e.g., Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452; Marsh v. Alabama, 326 U. S. 501; Martin v. City of Struthers, 319 U. S. 141; Grosjean, supra, and a right to receive printed matter, Lamont v. Postmaster General, 381 U. S. 301.
Page 408 U. S. 728
No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information, the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist. Zemel v. Rusk, 381 U. S. 1. [Footnote 3/4] Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971). As Madison wrote: "A popular Government without popular information or the means of acquiring it is but a Prologue to a Farce or a Tragedy, or perhaps both." 9 Writings of James Madison 103 (G. Hunt ed.1910).
B
The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized: (1) newsmen require informants to gather news; (2) confidentiality -- the promise or understanding that names or certain aspects of communications will be kept off the record -- is essential to the creation and maintenance of a newsgathering relationship with informants; and (3) an unbridled subpoena power -- the absence of a constitutional right protecting, in any way, a confidential relationship from compulsory process -- will either deter source from divulging information or deter reporters from gathering and publishing information.
Page 408 U. S. 729
It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts. Familiarity with the people and circumstances involved in the myriad background activities that result in the final product called "news" is vital to complete and responsible journalism, unless the press is to be a captive mouthpiece of "newsmakers." [Footnote 3/5]
It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An officeholder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion. All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox
Page 408 U. S. 730
views. The First Amendment concern must not be with the motives of any particular news source, but rather with the conditions in which informants of all shades of the spectrum may make information available through the press to the public. Cf. Talley v. California, 362 U. S. 60, 362 U. S. 65; Bates v. Little Rock, 361 U. S. 516; NAACP v. Alabama, 357 U. S. 449. [Footnote 3/6]

So, there is my answer to your constitutional question. The section in bold above, is really the core of the argument. The rest is just finding statutory, constitutional and precedent to support it (with the rest of the dissent, not quoted, pretty much eviscerating the majority's argument, in my opinion).

I look forward to an equally informed response. To help you in your response, here is a link to the entire decision: https://supreme.justia.com/cases/federal/us/408/665/case.html