Appeals Court Says Reporters Must Testify or Go to Jail
Two reporters who have refused to name their sources to a grand jury investigating the disclosure of the identity of a covert C.I.A. agent should be jailed for contempt, a three-judge panel of the federal appeals court in Washington unanimously ruled today. Citing a 1972 decision of the United States Supreme Court, the panel held that the reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, have no First Amendment protection from grand jury subpoenas seeking the names of their sources. It can be a crime for government officials to divulge the identities of covert agents. The 1972 decision, Branzburg v. Hayes, considered four consolidated grand jury cases, including one in which a reporter witnessed illegal drugs being made. In today’s opinion, the panel said the Supreme Court’s “transparent and forceful” reasoning applied to the two reporters before the appeals court. “In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish,” Judge David B. Sentelle wrote for the panel, “the court stated that it could not ‘seriously entertain the notion that the First Amendment protects the newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.’ ”
But the judges disagreed about whether evolving legal standards reflected in lower-court decisions and state statutes might provide a separate, nonconstitutional basis for protection to reporters in some circumstances, under a so-called common law privilege. That dispute was, however, of no immediate help to Ms. Miller and Mr. Cooper, as all three judges agreed that the special prosecutor in the case, Patrick J. Fitzgerald, had overcome whatever protection was available.
Exactly how would the fact that lower courts and state legislatures have created different rules change the interpretation of the Constitution? Unless the Supreme Court overrules Branzburg, which seems unlikely, it remains the definitive interpretation of the First Amendment in such cases.
As noted here back in November, while there is no Federal shield law, the Justice Department has long recognized the value of letting journalists protect their sources and therefore only demanded they break confidentiality under limited circumstances. I see no evidence that the courts need to step in and change the status quo.