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No First Amendment Protection: Appeals Court Says Reporters Must Testify or Go to Jail

NY Times | February 15 2005

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 on contempt charges, a three-judge panel of the federal appeals court in Washington ruled unanimously 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 a grand jury subpoena seeking to learn the identity of their sources. Under a 1982 law, 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 in that case applied to the two reporters before the appeals court now.

"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," the panel wrote, "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 federal prosecutor in the case, Patrick J. Fitzgerald, had overcome whatever protection was available.

The reporters will ask the full appeals court, the United States Court of Appeals for the District of Columbia Circuit, to hear the case, their lawyers said. Should that fail, they are likely to ask the United States Supreme Court to review the case. Those steps could take weeks or months, a spokeswoman for The New York Times Company, Catherine J. Mathis, said.

Unless Mr. Fitzgerald asks for a suspension of the usual procedures, the reporters will remain free at least until the appeals court rules on their request for a rehearing. Mr. Fitzgerald did not address that issue in a statement issued by his office.

"Today the Court of Appeals affirmed that reporters do not have a First Amendment privilege to refuse to comply with a grand jury subpoena issued in good faith," the prosecutor said, asserting that there was a "critical need for the reporters to comply with the subpoenas in this case." He added that "we look forward to resuming our progress in this investigation and bringing it to a prompt conclusion."

Last fall, Ms. Miller and Mr. Cooper were held in contempt of court by Chief Judge Thomas F. Hogan of the United States District Court in Washington, who ordered them jailed for as long as 18 months. They would be released, he said, if they agreed to testify.

The case has its roots in an opinion article published in The Times on July 6, 2003. In it, a former diplomat, Joseph C. Wilson IV, criticized a statement made by President Bush in his 2003 State of the Union address. Mr. Wilson based his criticism on a trip he had taken to Africa for the C.I.A. the previous year.

Eight days after Mr. Wilson's article was published, the syndicated columnist Robert Novak reported that "two senior administration officials" had told him that Mr. Wilson's wife, Valerie Plame, was "an agency operative on weapons of mass destruction."

Mr. Wilson has said the disclosure of his wife's affiliation with the Central Intelligence Agency was retaliation for his criticism. Others have said that the disclosure put his criticism in context by suggesting that Mr. Wilson's trip was not a serious one but rather a nepotistic boondoggle.

It is not known whether Mr. Novak has received a subpoena or, if he did, how he responded.

Mr. Cooper and two other Time reporters published an article on Time's Web site three days after Mr. Novak questioning the administration's motives for disclosing Ms. Plame's identity and saying that the magazine had received similar information.

Ms. Miller has not written on the Plame matter, though she conducted interviews in contemplation of a possible article.

The editor in chief of Time Inc., Norman Pearlstine, said in a statement: "We continue to believe that the right to protect confidential sources is fundamental to journalism. Without that right, important information that should be available to the public would never see the light of day. In the United States, no journalist should have to go to jail simply for doing his or her job."

Arthur Sulzberger Jr., the chairman of The Times Company and the publisher of The Times, said in a separate statement: "We are deeply dismayed at the U.S. Court of Appeals decision to affirm holding Judith Miller in contempt, and at what it means for the American public's right to know. If Judy is sent to jail for not revealing her confidential sources for an article that was never published, it would create a dangerous precedent that would erode the freedom of the press.

"The protection of confidential sources was critically important to many groundbreaking stories, such as Watergate, the health-threatening practices of the tobacco industry and police corruption. The Times will continue to fight for the ability of journalists to provide the people of this nation with the essential information they need to evaluate issues affecting our country and the world. And we will challenge today's decision and advocate for a federal shield law that will enable the public to continue to learn about matters that directly affect their lives."

A spokesman for Mr. Fitzgerald did not immediately respond to a request for comment. Mr. Fitzgerald has in the past consistently declined to discuss the case.

 

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