Hitchens v. Blumenthal, Part 6

The most interesting bit of high-minded hooey to emerge from the Hitchens-Blumenthal flap can be found in Joe Conason’s column in this week’s New York Observer. Chris Hitchens, you’ll recall, agreed to cooperate when a House Judiciary committee staffer phoned to ask about Sid Blumenthal’s “Monica the Stalker” comments to Hitchens over lunch. By squealing to the impeachment investigators, Conason argues, Hitchens compromised the ability of the two magazines Hitchens regularly writes for–Vanity Fair and The Nation–to claim future legal protection for news source confidentiality under the Washington, D.C., journalists’ shield law. Conason writes that he derives this legal opinion from unnamed “expert attorneys.”

The question of whether writers for Vanity Fair and The Nation now enjoy less protection for their activities under D.C. law is of more than academic interest to Chatterbox. That’s because Mrs. Chatterbox, who lives and works in Washington, D.C., happens to be a contributing editor to Vanity Fair. Chatterbox would be sincerely sorry to see her tossed into the slammer simply because her colleague Chris Hitchens has a big mouth. Chatterbox decided to phone two “expert attorneys” of his own.

One was Floyd “Pentagon Papers” Abrams. Chatterbox asked Abrams whether Vanity Fair or The Nation will have trouble claiming protection under the D.C. shield law because of Hitchens. Here is what Abrams said: “I think that both of them will be as free to claim the protections of the D.C. shield law as they are now. More broadly, I think Hitchens has compromised the sort of arguments lawyers make to judges in situations in which legal protection is uncertain. … In those cases, the fact that he felt impelled to prepare this affidavit may be of some temporary harm. But I think lawyers will be able to do a reasonably persuasive job in persuading judges that Hitchens’ views are not representative of those of the American journalistic community and should not be held against journalists at large.”

Chatterbox posed the same question to Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press (which, incidentally, has some helpful information on the D.C. shield law posted on its Web site). Kirtley answered that she found the idea that Hitchens had undermined the D.C. shield law’s efficacy for anyone else “a little farfetched.” Indeed, Kirtley said, even Hitchens’ right to claim protection under the D.C. law for his other journalistic transactions probably remains unmolested. Kirtley had an aide e-mail Chatterbox a copy of the D.C. statute. To give you an idea of how strongly worded it is, compelled disclosure of sources is prohibited “whether or not the source has been promised confidentiality.”

It’s true that if Hitchens now wants to claim protection under the D.C. shield law for his Monica the Stalker conversation with Blumenthal, it could reasonably be argued that he’s waived that right by blabbing to the House Judiciary committee. (This is relevant because Hitchens claims he will not testify against Blumenthal in a perjury trial.) However, even that might prove a difficult argument for a prosecutor to win. That’s because a 1998 amendment to the D.C. law states: “The publication by the news media or the dissemination by a personemployed by the news media [italics mine] of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure. …”

Granted, it’s not entirely clear that this protection extends to dissemination to anotherarm of the government. (The case probably on the mind of whoever wrote the statutory language concerned a Washington Post reporter who was asked to reveal information that she’d already “disseminated” to her husband.) And conceivably Hitchens could have a hard time arguing that his gossipy lunch with a friend constituted “pursuing professional activities.” But Chatterbox suspects that a D.C. jury would ultimately conclude what many of Blumenthal’s defenders seem loath to acknowledge–that, even when gossiping with friends, a journalist is always “pursuing professional activities.”

(Whether Hitchens’ refusal to testify would actually help Blumenthal in a perjury trial, of course, is another matter. There’s still that affidavit he signed. Possibly Hitchens could complicate its use as evidence if he withdrew it, as he’s threatened to do. But possibly the court wouldn’t let him. Still, that has nothing to do with whether Hitchens has weakened D.C.’s shield law for journalists.)

–Timothy Noah