Obama’s Escalating War on Freedom of the Press

[hueymahl]

103. I honestly am not sure how to respond to that comment

You are a well respected poster here, with many who admire you. I am a newbie in every sense of the word. An interloper, a guest, a plebe, a junior.

So your question bothers me. Am I misunderstanding it? Is there another meaning? Or is it as lacking in understanding and foundation as it appears to be? I hesitate in even writing the foregoing.

So I will presume that you mean what you say, that you believe I have not answered your implied assertion that my position is inconsistent because Miller went to jail and Risen should not. Well, the answer is simple. Miller should never have gone to jail. I can't speak to those who cheered the prior jailing as I was not here, but I would tell them that they are also wrong. The reason for the answer is as I laid out in my original reply - the Court made a fundamental and tragic error in its decision, a decision that will go down in infamy with Plessy v. Fergueson, Dredd Scott, Citizens United and Bush v. Gore, to name a few.

The more practical answer is that Miller likely will go to jail, but only if the administration wants him to. Remember, they are the ones choosing to prosecute the case. The law is on their side, and overturning even heinous decisions and law is a long shot (though one I think is doable in this case).

As to your reference to the Fifth Amendment, I can only assume that you are not an attorney and don't particularly have a deep knowledge of the legal aspects of what is going on. I'm sorry, that was condescending. I am prone to do that.

The Fifth Amendment has ZERO bearing on this case because the government made sure it would not. As you so ably pointed out yourself, it is not Risen that is on trial (yet). He is being compelled to testify about his source. He has been granted immunity in his testimony by the Administration for the specific purpose of depriving him the ability to assert his Fifth Amendment rights, thus, ipso facto the Fifth Amendment to our Constitution does not apply. Here is what the the Appeals Court for the 4th Circuit said about the fifth amendment in this case:

The controlling majority opinion in Branzburg and our decision in Shain preclude Risen’s claim to a First Amendment reporter’s privilege that would permit him to resist the legitimate, good faith subpoena issued to him. The only constitutional, testimonial privilege that Risen was entitled to invoke was the Fifth Amendment privilege against self- incrimination, but he has been granted immunity from prosecution for his potential exposure to criminal liability. Accordingly, we reverse the district court’s decision granting Risen a qualified First Amendment reporter’s privilege that would shield him from being compelled to testify in these criminal proceedings.

And here is the link: http://www.ca4.uscourts.gov/opinions/Published/115028.p.pdf
Scroll to the bottom of page 30.

Unless I am badly mistaken, this effectively lays waste to anyone's argument that the press is somehow protected in the exercise of its rights as journalists by the protections potentially afforded by the Fifth Amendment.

Does this adequately answer your question? I will be happy to expand on any point.

Respectfully,

Huey