Why Jan Brewer is sounding like James Risen

Arizonas former governor is claiming First Amendment protections, and she may have a point

My law school mentor used to joke that the First Amendment has protected a bunch of unsavory characters: separatists, chauvinists, white supremacists, communists, jingoists, bigotsand on its darkest days, he would say, the First Amendment has even protected journalists.

Now, we might be able to add one more to the list: Jan Brewer, the former Arizona governor, who has some unsavory marks on her record and is kind of a journalist, she claims. Double the First Amendment fun!

Opponents of Arizonas tough immigration law, known as SB 1070, recently asked a federal judge to order Brewer to comply with a subpoena for the notes and materials she used to write her 2011 book Scorpions for Breakfast.

The opponents, mostly civil liberties organizations, subpoenaed Brewer as part of a lawsuit against the sheriff of Apache County. The groups are challenging SB 1070 on various grounds, and they argue that Brewer, who is not a party to the suit, possesses notes and materials relevant to the case.

Those materials would be the source documents Brewer presumably relied on to write her book, much of which discusses SB 1070, and which she says she wrote in her personal, not official, capacity. And those documentsemails, letters, memoranda, notes of meetings, recordings of interviews, etc.would shed light on certain facts at issue in the case, the laws opponents claim. The groups requested the materials from Brewer twice before, in August and November 2014, but both times she refused to disclose anything, citing several reasons.

One of them: the First Amendment.

Journalists privilege: Not just for journalists

In part, Brewer is arguing that the First Amendment-based journalists privilege allows her to shield her notes and source materials.

She may be right. In the Ninth Circuit, which covers Arizona, and in the majority of other circuits, the journalists privilege is a recognition that the free flow of information to the public is an interest of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.

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Why Jan Brewer is sounding like James Risen