[Albert Burnside]
In 1972 in Branzburg v. Hayes, this court ruled against the right of reporters to withhold the names of their sources before a grand jury, and it gave the power to the government to imprison those reporters who did. It was a 5-4 decision. Close. In his dissent in Branzburg, Justice Stewart said, 'As the years pa**, the power of government becomes more and more pervasive. Those in power,' he said, 'whatever their politics, want only to perpetuate it, and the people are the victims.' Well, the years have pa**ed, and that power is pervasive.
Mrs. Armstrong could have buckled to the demands of the government. She could have abandoned her promise of confidentiality. She could have simply gone home to her family. But to do so would mean that no source would ever speak to her again, and no source would ever speak to her newspaper again, and then tomorrow when we lock up journalists from other newspapers, we'll make those publications irrelevant as well, and thus we'll make the First Amendment irrelevant.
And then how will we know if a President has covered up crimes? Or if an army officer has condoned torture? We, as a nation, will no longer be able to hold those in power accountable to those whom they have power over. And what then is the nature of government when it has no fear of accountability? We should shutter at the thought. Imprisoning journalists? That's for other countries. That's for countries who fear their citizens, not countries that cherish and protect them.
Some time ago, I began to feel the personal human pressure on Rachel Armstrong, and I told her that I was there to represent her and not a principle. And it was not until I met her that I realized that with great people, there's no difference between principle and the person.