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The Ontario Court of Appeal may have thought itself very clever last week when it said, in upholding the validity of an RCMP search warrant served on the National Post, "it is not necessarily better to write about crime than to do something about it." But the line trivializes the right to free expression. While the court acknowledged that journalists have a right to protect their confidential sources, in appropriate cases, its words suggests that it is dismissive of that right.

The full quote, which the court was paraphrasing, came in a 1972 ruling by Justice Byron White of the U.S. Supreme Court, in a landmark case in which three reporters refused to testify at a grand jury hearing when subpoenaed, in order to protect their confidential sources, and were found in contempt. By a 5-4 margin, the court ruled against the reporters. "Thus," Judge White wrote, "we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it." That was two years before Watergate, a story that brought down a president. The police didn't do that; two reporters did. To write about wrongdoing, to expose it, is to do something about it. That's what reporters in a free press do. And to do so, they may need to rely on confidential sources. It's understandable that Judge White would say such a thing pre-Watergate. It's less so for Mr. Justice John Laskin and Madam Justice Janet Simmons of the Ontario appeal court, 34 years post-Watergate.

"It is not necessarily better to write about crime than to do something about it." Wasn't that the essence of the RCMP's legal argument when challenged over its raid four years ago of Ottawa Citizen reporter Juliet O'Neill's house? It conducted the raid, it argued, because someone had leaked a confidential document -- a government secret, protected by law -- to Ms. O'Neill about Maher Arar, a Canadian who had been tortured in a Syrian jail. It said it wanted to find the document because doing so might reveal who leaked it. What is so different about the case before the appeal court? The court ruled against the Post because at the heart of it was a "grave and heinous" offence: the forging of a document (sent to a reporter) aimed at undermining Prime Minister Jean Chrétien. But didn't the RCMP argue that leaking private information about Maher Arar was grave and heinous? And wasn't it? Yet Madam Justice Lynn Ratushny of Ontario Superior Court called that raid an attempt at intimidation that offended "the public's sense of decency and fairness." Today, would she rule that doing something about crime is better than writing about it?

We hope the National Post appeals this ruling, and that the Supreme Court agrees to hear the case.