When Is Nonviolent Civil Disobedience Justified? The Case of Judith Miller

By JULIE HILDEN
julhil@aol.com
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Tuesday, Jul. 19, 2005

At the same time that we believe it's usually right to obey the law, most of us also think there are some cases in which it's right to disobey it - especially if the disobedience takes a non-violent form.

To draw on an obvious but compelling example, few would suggest that African-Americans were wrong to protest segregation in the South by sitting at whites-only lunch counters and refusing to leave, or by refusing to move to the back of the bus.

We can all agree on these basic examples of justified civil disobedience. Even though these actions broke the law, we still believe they were the right thing to do. Hence, we see the protesters as civil rights heroes - not scofflaws. And we read Martin Luther King's "Letter From Birmingham Jail" as a key philosophical tract, not a felon's memoir.

The most recent high-profile instance of civil disobedience is that of New York Times reporter Judith Miller. After a federal judge found Miller in contempt of court for refusing to comply with a grand jury subpoena, she has been held in a federal penitentiary. Every court to review the subpoena has proclaimed it legally valid, but Miller believes it to be unconstitutional.

As I discussed in a prior column, Miller's view of the First Amendment is reasonable - and, in my opinion, correct. She believes - and her attorneys have argued - that the press is not truly free, as the Constitution guarantees it must be, unless reporters can protect their confidential sources from subpoenas, and court orders, that would reveal their identity.

More specifically, she and her lawyers contend that without enforceable confidentiality promises, sources won't speak, and that the sources who demand confidentiality are often those who hold information of the most intense public interest - information that is at the very core of the First Amendment's freedom of the press protections. Thus, they argue for a First Amendment-based privilege for journalists who are protecting confidential sources.

But the Supreme Court has held otherwise, in Branzburg v. Hayes, and has recently declined to grant review in Miller's case, which would have given the Court a chance to change its mind.

By going to jail, rather than testifying before the grand jury, Miller has chosen to disobey all the courts that have ruled against her, and their interpretation of the law and the Constitution. At the same time, another journalist - Time's Matthew Cooper - has taken another path, ultimately choosing to cooperate with the grand jury after negotiating a waiver of confidentiality from his source.

Are Miller's actions rightly viewed as justifiable civil disobedience, or is she merely a scofflaw?

In this column, I will consider some factors that may play into the determination of when nonviolent civil disobedience like Miller's is - or is not - warranted.

The First Factor: Before Disobeying the Law, Try to Exhaust the Law's Own Remedies

To begin, the validity of Miller's position is enhanced by the fact that she has exhausted all possible appeals - even trying (unsuccessfully, it turns out) to get the Supreme Court to review her case.

In contrast, not every practitioner of civil disobedience bothers to exhaust their legal remedies. Take, for example, the case of New York attorney Lynne Stewart - discussed in detail in an earlier column by Elaine Cassel.

Like Miller, Stewart strongly believed that a court order applicable to her was unconstitutional. But unlike in Miller's case, it appears that Stewart simply, and covertly, disobeyed the order, without first appealing it as far as she could. More than this, Stewart actually affirmatively agreed to abide by the order imposing Special Administrative Measures - then betrayed that promise to the government.

In Miller's case, the order at issue required her to comply with a subpoena for her testimony before a grand jury. In Stewart's, the order at issue allowed government surveillance of, and limitations upon, her attorney-client communications.

Understandably, Stewart felt that the order impaired her client's Sixth Amendment right to an attorney; attorney-client discussions can hardly be conducted freely when the government can listen in.

But, on the other hand, the government had a good reason for seeking the order: Stewart's client was a convicted terrorist kingpin who the government feared might still be planning future attacks from his cell, and using his attorney and his translators as conduits to do so.

Especially given the stakes, Stewart surely should have litigated her case all the way up to the Supreme Court, before she disobeyed the prison regulation. (And even then, she should, at a minimum, have thought long and hard about the potentially lethal consequences of her, in the instance, nonviolent disobedience).

Miller, however, has consistently pressed her constitutional position everywhere she can - in court, in public, and now, in jail. That's as it should be. And the fact that she's done so, ought to count in her favor when we assess whether her decision to go to jail, rather than comply, is justifiable.

The Second Factor: Institutional Weaknesses of the Courts Can Help Justify Civil Disobedience

In my view, the topic of Miller's civil disobedience also tends to suggest it is justified. Years of experience as a reporter have convinced Miller that the ability to offer confidential source protection is integral to the maintenance of the free press our First Amendment guarantees. She probably believes that the courts have held otherwise because, to some extent, they "just don't get it."

And she may well be right. It's an uphill battle to convince a court that something in the world could possibly be more important than law enforcement - and, especially, more important than compliance with a court order. The "least dangerous branch" is so-called precisely because there is a chance its orders won't be obeyed - and believe me, the members of the judiciary do not like belonging to the least dangerous branch!

Just look at the Clinton v. Jones decision - there, the Supreme Court held that it was more important for Paula Jones's suit to go forward in court, than for the President - an individual who is also the head of an entire branch of government -- to be able to function unimpeded by such suits. Rather than cripple the power of a federal district court, the Supreme Court ended up - perhaps inadvertently, but at least somewhat predictably -- crippling the Clinton presidency.

Granted, Miller's "journalist" glasses may cause her to overvalue confidential source protections. But so too may judges' "least dangerous branch" glasses cause them to overvalue the power to get evidence from journalists, in particular -- as opposed to from all the other sources the world may have to offer. And these glasses may also cause them to undervalue the importance of reporters' ability to make binding promises to confidential sources.

After all, the risk of whistleblowing is itself a form of tacit law enforcement - it deters bad conduct. And the risk of whistleblowing is greatest when confidential source protections are strongest; a whistleblower who knows the only person to whom he speaks, will never reveal his identity, is much more likely to speak than one who anticipates exposure is possible. But don't count on courts to see this kind of "law enforcement" as being just as valuable as what they themselves do.

Granted, Rove himself seems not to be a whistleblower, though the point can be argued; he apparently thought he was rightly questioning a public official's - former Ambassador Joseph Wilson's -- credibility on a matter of intense public interest. More to the point, though, whether one buys the Rove-as-whistleblower argument or not, doubtless in trying to prove her general First Amendment point, Miller wants to urge protection for all confidential sources, including but not limited to whistleblowers.

And taking that position makes some sense: The question of who is a whistleblower is always going to be politically fraught; Republicans may see Rove as a whistleblower, whereas Democrats may see him as merely vengeful - verbally attempting to destroy the President's critics.

On a similar note, the way each of us sees Miller is probably politically-laden as well: Democrats, especially, will think, for example, she has much to answer for in helping bolster poor Iraq War justifications.

But when looking at the justification for nonviolent civil disobedience, I think, it's valuable to look, not only at politics and results - which are inescapable - but also at neutral factors like the ones I suggest here.

Otherwise, we will never think our political opponents' civil disobedience is justified - and that seems intellectually dishonest.

The Third Factor: The Presence of Vulnerable Persons Who Cannot Litigate

Another factor suggesting Miller's civil disobedience is justified is the presence of a vulnerable class of persons who cannot litigate for themselves: confidential sources.

Sure, these sources can theoretically go to court as "John Does," but they are probably afraid to. And for good reason: Once they are linked to a given lawyer, their identity may well be guessed.

Indeed, that lawyer may even have to circulate a "conflicts-of-interest" check to all the attorneys at his or her entire firm to make sure he can represent the source. That email or memo might also be seen by staffers - especially those who are the keepers of client lists - who, unlike attorneys, cannot be deterred from disclosure by fear of disbarment.

In addition, the confidential source has no guarantee of being represented by the first attorney he or she approaches - meaning that seeking representation may entail even more disclosure, to an even greater number of people.

Undisclosed confidential sources, then, won't be showing up in court, even as "John Does," and you won't see them lobbying the legislature, either. If someone is going to speak for them, it's going to be journalists.

In constitutional law, "discrete and insular minorities" - members of a minority race, or religion, for instance -- are sometimes entitled to special constitutional protection. When legislation discriminates against "discrete and insular minorities" who are likely to be victims of prejudice and to lack the organization or political power to protect their rights, courts recognize that they may need to step in to protect such minorities.

If discrete and insular minorities who are less likely to avail themselves of usual political processes are protected, why not minorities who - like the class of current confidential sources -- are scattered, vulnerable, and alone?

Although not "discrete"--a term sometimes applied to racial or religious communities, for instance -- confidential sources are certainly "insular," each an island unto him- or herself. And they too, for the reasons I've noted above, are less likely to feel the freedom, and have the power, to be able to appear in courts, testify before legislators, or wield lobbying influence.

Being structurally frozen out of the legislative process has historically been a reason for courts to extend special constitutional protections. And confidential sources are certainly, in effect, frozen out, for the very reasons they have to keep their identities confidential in the first place.

I think many of the examples of the kinds of nonviolent civil disobedience we think are justifiable can be explained by the fact that those whose interests are truly at issue, are frozen out of democratic and/or judicial processes.

The same reason that courts reach out to protect such persons, is also a reason that, when courts decline to extend protection, nonviolent civil disobedience in the service of such protection, may be justifiable.

I am thinking of nonviolent civil disobedience on behalf of African-Americans relegated to a lower legal status under "Jim Crow" laws, of course. But I am also thinking, to cite some more modern examples, of nonviolent civil disobedience in favor of animals, fetuses, and even trees. (Think of the example of Julia Butterfly Hill, who saved a redwood by living high up in its branches for two years.)

Again, as noted above, while political judgments are inevitable, based on our personal disagreement with certain causes, I think we should also have neutral factors by which we can evaluate - and sometimes, find justified -- even our political opponents' civil disobedience.

When actions in civil disobedience are nonviolent, when legal remedies have been exhausted, and when the goal is to protect those who are vulnerable whom the courts are institutionally unlikely to protect them, those actions arguably ought to count as justifiable -- no matter what the politics, and no matter what the result.

Setting lab animals free when they are being cruelly treated is a response to the courts' refusal to consider those animals anything but private property. Violating too-restrictive court-ordered speech zones to make sure abortion doctors hear an impassioned plea to save a fetus, is a response to the courts' refusal to consider fetuses to be constitutional persons. Sitting in a tree to physically protect it, as Hill did, is a response the legal system's refusal to see the tree as anything but, again, private property - when in reality, it is also part of a complex ecosystem that includes a human community. When courts relegate a class of persons (or interests) to a very low or nonexistent status, nonviolent civil disobedience may be a justifiable response.

Like the Lorax, Miller speaks for the voiceless. For this reason, as well as many others, we should respect and honor the reasons she has chosen to go to jail. Whatever we may think of Miller's politics, we can admire the principle she is upholding here, and the personal sacrifices she is enduring to do so.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. (There, she aided in the representation of President Clinton, but not in the Clinton v. Jones suit or impeachment proceedings.). Hilden is the author of the novel 3. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.