Jonathan Burdick to Roger Feb 9 (1 day ago)

"Part of being a good citizen is being willing to testify."

-- under any and all sets of imaginable facts?

(note: this is a long thought ... maybe you could just point out where I'm wrong, in "non-conclusory" language, rather than blogging it ... your call)

So you would simply not allow reporters to withhold confidential sources, and always assume good faith on the part of the government without a showing of public need sufficient to overcome the privacy interest and/or intellectual property interest of the person whose testimony is sought. And you imply that no facts could exist which would impel a good citizen to withhold testimony. You also imply that repeated jailings for contempt is not torturous. Isn't part of being a "good citizen" being "not a good citizen" when the government is "not being a good government"? I thought Ayn Rand took care of that one with Atlas Shrugged, a government can get so haywire with corruption that it runs amok with jack-booted thugs who compel all sorts of things, not just testimony in the run-of-the-mill type of case you seem to be contemplating.

Is it a one-way street? Putting it bluntly, is it possible under any set of imaginable facts to be: (a) Roger Schlafly, and (b) civilly disobedient? Was it part and parcel of "being a good citizen" to go off to Vietnam? Or, if you don't believe Vietnam became (at some point) an unjust war, let's imagine one. Given an unjust war, does a good citizen go, or draft dodge? I recall reading some case law commentary which said that if you were a bar admission candidate in the '70s, and you were a former Vietnam draft dodger, New York would hold: "moral turpitude -- you cannot practice law", whereas California would hold: "draft dodger? now THAT's moral courage, just the kind of fellow we want practicing law here." By analogy, if I decided to withhold testimony in a case, one person might agree with me, another might disagree. You seem to be saying that you would always disagree with me, and that withholding testimony is never the morally right thing to do, under any circumstances imaginable.

If the court asked you to testify, you'd say "fine" and let them put you on the stand for the rest of your life, if they said they needed it. Me, I'd ask them how long it was going to take, what they were planning to ask me, and what safeguards we could negotiate (sealed record, ex parte testimony, etc.) to protect any intellectual property rights I felt were at stake and at risk of being compromised. If I determined that the government was trying to get me to divulge something I didn't want to (for example, if I developed a munitions invention, and I was afraid of being treated like Hebern, that is, ripped off by the government) -- the morally right thing to do might be to withhold testimony and go to jail for contempt. To hold otherwise would mean that the government has a right to compel the testimony of an inventor they believed had invented something which could/would impact national security ... and if they did that, they're socialists. An inventor gets to decide if, when and how he discloses an invention.

Your point about photographers being protected by copyright is worthless in a day when the "legal case about the photograph" becomes news, the photog's intellectual property is "newsified", and once the photo is out as "news" he can't profit by it. So change the facts. Make it an invention, not a photo. Tell me what an inventor should do if he invents something which could bear on national security, tries to get defense companies to sign nondisclosure agreements, the government finds out, and tries to compel the inventor to disclose? Inventor says: "No, I'd rather go to jail than have you guys rip me off like you did Mr. Hebern." How is that being a bad citizen, when the motivation is to teach the government to be a good government, and get a fair price for your invention?

How about this? I'm testing a new camera I invented which sees through walls, it can snap a photo of what's behind the brick (for example), by specifying where the shutter "would be" (e.g. ten feet behind the wall) and (e.g.) what it's taking a picture of is twenty feet behind the wall, i.e. although I as photographer am on the outside of the building, my special camera takes a picture of something inside the building as if I were standing there ten feet away from the subject. What I happen to take a picture of, while testing the camera, is a robbery in progress. Being a good citizen, I develop the photo (which looks like a regular photo), and give it to the local prosecutor along with a cursory explanation of my invention (enough to make it believable, but not enough to enable practicing the invention), which I was in the process of reducing to practice. Soon, the government says they need to see the camera itself, in order to establish the authenticity of the photo for the robbery prosecution, which they claim in good faith -- but they're even more interested in how the invention bears on national security -- "we can't let that sort of thing fall into the hands of the enemy," they assert. I say "no", all that's at stake is a simple robbery prosecution, I have no intention of letting the enemy in on the little secret, and if I disclose the invention, there's no way to ensure I'll profit from it (once the cat's out of the bag) sufficiently to make up for the shafting I received at the hands of a corrupt judiciary several years ago. But I'm willing to sign an affidavit listing all my credentials, cursorily describing my hard work, and swearing that the camera operates the way I say it does. Judge threatens contempt. I say "go ahead and put me in jail", and good luck deciphering my encoded and obfuscated notes, because I destroyed the prototype camera.

I say that under thoe facts, the government should have to prove that it's interest in the robbery prosecution outweighs my privacy interest, and that they don't have a right to compel disclosure of an invention just because they're curious about it.