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CARRYING THE FLAG FOR FREEDOM OF THE PRESS

Floyd Abrams has been fighting landmark First Amendment cases for more than three decades, from the Pentagon Papers to Valerie Plame.

Now America's pre-eminent First Amendment lawyer is seeing journalism from outside the courtroom and in front of a word processor. Abrams just released a book about his litigation called, "Speaking Freely." He enjoyed the writing gig.

"I felt empowered," Abrams said in a telephone interview. "I felt -- here's my chance to tell it the way I should."

Like reporters, Abrams discovered freedom of the press only goes so far.

"I had to restrain myself," he said. "While there were some people I enjoyed slapping around in the book, I needed extra time to read and reread those parts that were really critical of people. I wanted to make sure I was being fair and not just paying back."

Abrams, as usual, is in the middle of another high-profile First Amendment case over the publishing of the name of Valerie Plame, a CIA undercover officer. Abrams is defending Judith Miller of the New York Times and Matthew Cooper of Time Magazine from a government subpoena over their confidential sources.

Plame's CIA identity was revealed by conservative columnist Robert Novak in 2003 after her husband, former ambassador Joseph C. Wilson IV, wrote an op-ed story in the New York Times criticizing the Bush administration over the Iraq war.

It can be a crime to identify undercover officers. After Novak published Plame's name, Cooper also did so, but Miller never wrote about Plame. Regardless, Miller, like Cooper, has been ordered by a three-judge panel of an appeals court in the District of Columbia to serve up to 18 months in jail unless they reveal their sources before the grand jury investigation.

Why should Miller go to jail if she never wrote a word about Plame?

"The theory of the government is that she's a witness because a source or sources spoke with her," Abrams said. "In effect, the government is saying she is a witness to her own interviews. Therefore, from their perspective, it doesn't matter that she didn't write anything. They want to know who told her things. And what she was told.

"It remains deeply troubling that the simple act of gathering information for a story that was never written should ultimately subject Judith Miller to a prolonged jail term.

"One of the real dangers of the Plame case is that some of the law that has already come out of it may do great violence to the ability of the public to learn what's going on with the government. It's more important that journalists be free to promise confidentiality to their sources than any benefit that would come from their testimony."

Novak, who first published Plame's name, has refused to comment on whether he testified, and last week Prosecutor Patrick J. Fitzgerald announced the investigation is finished, except for questioning Cooper and Miller.

"It was an extraordinary thing for him to say that everything is done," Abrams said. "For example, that means Novak is done, one way or another, meaning he either testified or he didn't. If he did testify, they don't need him anymore.

"One might ask, if Novak testified, why do they need Miller and Cooper? If Novak hasn't testified, why not? And if the answer is the Fifth Amendment, that's very interesting. We'd like to know that."

Abrams would battle for Novak's rights.

"Bob Novak's got First Amendment rights, too," he said. "He obviously should be viewed as a more central figure than Miller or Cooper, but he is as entitled as they are to First Amendment protection."

Complicated ethical and legal questions are nothing new for Abrams when it comes to defending freedom of the press. But recent scandals and admitted story fabrications by Jayson Blair at the New York Times, Jack Kelley at USA Today and Mitch Albom at the Detroit Free Press don't make Abrams' job any easier.

"It obviously has some bearing," he said. "One way to characterize what a lawyer like me is saying in court is: 'Trust us; society will be better by trusting journalists.' To that extent, any or all of these scandals are harmful. But the fact there are bad apples shouldn't lead to a result which deprives the public of news and information which benefits it."

Another recent trend has been the use of "phony news." The Bush administration reportedly spent $254 million on news releases made to look like television news reports. Armstrong Williams, a columnist and television host, publicly apologized for taking money to promote the Department of Education's No Child Left Behind Act. A man called Jeff Gannon turned up as a reporter at White House news conferences but later quit after it became known he used a false name and was employed by a Web site staffed mainly by Republican activists.

"It's a serious matter," Abrams said. "Nothing can be more destructive to journalism than the visage of make-believe journalists. It's an outrage for people to comport themselves as if they are journalists when they are simply political operatives."

Abrams himself is not immune from press criticism. Recently, the Village Voice blasted Abrams for his role in what the paper termed a "whitewash" of a Columbia University committee report about clearing professors of Anti-Semitism. Abrams teaches at Columbia and was an adviser to the committee.

"It's never pleasant, but it's healthy for someone who represents the press or someone who is in the press to get beat up a little by the press," Abrams said.

Desite such darts, he likes being around journalists.

"Oh yeah, they're a lot of fun," Abrams said. "I find people who go into journalism are more fun than anyone else to talk with, drink with and hang around with."

More fun than lawyers?

"Especially lawyers," Abrams replied.

e-mail: aviolanti@buffnews.com