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New York Times reporter Judith Miller’s fight with federal prosecutors may culminate in a U.S. Supreme Court battle that would define the scope of reporters’ First Amendment right to gather news, Miller’s attorney told an audience at Emory University School of Law Thursday night. First Amendment attorney Floyd Abrams said that if the government loses its 2nd Circuit appeal over the disclosure of undercover CIA agent Valerie Plame’s identity, the Supreme Court likely would grant review of the case. “I can hear Mr. Scalia saying, �Give me a break,’” said Abrams. Abrams, a partner at Cahill Gordon & Reindel in New York who represented The New York Times in its fight with the government over the Pentagon Papers, spoke Thursday at an annual lecture sponsored by Emory’s journalism program. Columnist Robert Novak revealed Plame’s identity as a CIA agent in July 2003 after Plame’s husband, former U.S. Ambassador Joseph Wilson, criticized the Bush administration’s treatment of intelligence on Iraq. Federal prosecutors have sought to force other journalists, including Miller, to reveal who leaked Plame’s identity to the press. Abrams suggested that until the Supreme Court clarifies the issue, all journalists really can promise their sources is to fight to protect their confidentiality all the way to the Supreme Court. One audience member asked whether it mattered that Miller’s source might have been a prominent federal government official and that prosecutors were trying to protect the public. “I don’t think that we should have a different body of law based on what we consider to be good leaks and bad leaks,” Abrams responded. Abrams said that Miller was caught in a bad spot even though she chose not to publish any information she received, as contrasted with what he called “the reckless behavior” of Novak. “We must remember, journalists don’t know the answers to questions before they get them,” said Abrams. Abrams said that in arguing Miller’s case, he said something about Web bloggers that troubled the media community. He said that intellectually he had to argue that bloggers who served the same role as journalists should be protected by the privilege. Such intellectual consistency could backfire, Abrams suggested. “If the privilege is one which everyone gets, nobody’s going to get it,” he predicted. Abrams said that while some journalists “aren’t any good,” in theory they have training and oversight by editors that bloggers lack. “That’s not a constitutional argument at all, but it’s certainly one legislators have considered,” he said. Touching briefly on a recent controversy over leaks about a federal government domestic spying program, Abrams suggested that it might be appropriate to consider whether the publication of the leaked information serves the public interest but called “very interesting” the prospect that the judiciary might get to decide what’s a benefit to the public. Abrams noted that Congress was considering legislation to create a federal reporter’s privilege, already provided through legislation or case law in 49 states. He urged the audience to find comfort in the states’ experience with the privilege, as well as the practices of other countries. “We have a long history in this country of this privilege being applied in states � with no apparent harm to the rights of criminal defendants,” said Abrams. He also said that the reporter’s privilege was the only area in the law of free speech and free press where the United States gives less protection than “other democratic” countries. Abrams began his talk by noting that he met one of the evening’s hosts�Joseph M. Beck, a Kilpatrick Stockton attorney who teaches in the journalism program at Emory�on opposite sides of a high-profile litigation. In a copyright suit against CBS over Martin Luther King Jr.’s “I Have a Dream” speech, Beck represented King’s estate while Abrams represented CBS. The case settled in 2000. Abrams cited his acceptance of the speaking invitation as an example for law students in the audience. “Lawyers really do get along, even lawyers who oppose one another,” said Abrams. Alyson M. Palmer can be reached at [email protected]

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