February 06, 2007

(Earlier: Dec. 20, Jan. 8, and Jan. 30.)

To no one's surprise, the New York Times declines the invitation for Alex Berenson to testify, citing its view of First Amendment "news gathering" privileges. The letter's position seems overstated: I didn't see the New York Times agreeing to take a default judgment in the Hatfill case (Jan. 6) rather than submit to document discovery.

It puts Eli Lilly in an awkward position, since the testimony certainly showed Berenson conspiring to violate the protective order, but going after him for criminal contempt of court would make him a press martyr rather than create a disincentive for other reporters to flout the law. One questions, however, why this is a decision for Lilly rather than the U.S. Attorney.

Update: Bill Childs posts a copy of the Times's letter. While AP has covered the tale of the invitation, still no reporting of it in the New York Times itself.