Reporters Face Jail if They Don’t Reveal Sources

In Leak Case, Reporters Lack Shield For Sources (WaPo)

Two reporters, Matthew Cooper of Time magazine and Judith Miller of the New York Times — neither of whom had anything to do with the leak to Novak — now face as much as 18 months in jail for refusing a court order to testify about their contacts with confidential sources related to the Plame story.

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The basic argument in favor of legal protection for a reporter’s pledge of confidentiality is that the public interest is served by making sure that whistle-blowers can take their tales of official wrongdoing to the news media without fear of reprisal. In 49 of the 50 states, plus the District, that argument has carried the day, and a reporter’s privilege of some kind has been recognized either by a “shield law” or by a court decision. Some federal appeals courts have also recognized such a privilege in federal lawsuits brought by private parties.

However, the counterargument is that reporters, no less than other citizens, have a duty to tell the authorities about criminal conduct they may have witnessed. And that persuaded five members of the Supreme Court when it ruled in 1972, in Branzburg v. Hayes, that the First Amendment does not protect journalists from being subpoenaed by a federal grand jury. Justice Byron R. White wrote that there was “no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

There is no federal “shield law,” though Sen. Christopher J. Dodd (D-Conn.) has proposed one since the Miller and Cooper cases. Chief Judge Thomas F. Hogan of the U.S. District Court in Washington cited Branzburg in ordering Cooper and Miller to testify.

After Branzburg, the Justice Department promised, in effect, not to abuse its power to subpoena reporters. Department guidelines instruct federal prosecutors to seek only the minimum of reporters’ testimony essential to resolve a case, when all other alternatives have been exhausted. But, as Hogan noted in his rulings, those guidelines are voluntary and do not give reporters a right to sue if they think the department has violated them. Hogan added that he believed that Patrick J. Fitzgerald, the special counsel in charge of the Justice Department’s investigation, had acted in accordance with the guidelines anyway.

Branzburg and the DoJ policy appear to strike the correct balance. While protecting whistle blowers and ensuring press access to information are values worth protecting, they shouldn’t be allowed to interfere with criminal investigations. Indeed, even lawyer-client privilege–more sacrosanct than the more informal journalist-source priviledge–has an exception for actual knowledge of criminal acts.

FILED UNDER: Law and the Courts, Media
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.