2.17.2005
A Shield for a Free Press (WashingtonPost.com)
Wednesday, February 16, 2005; Page A18
THE U.S. COURT of Appeals for the District of Columbia Circuit yesterday affirmed a lower-court ruling that holds two reporters in contempt for refusing to testify in the federal investigation of the leak of Valerie Plame's identity as a covert CIA operative. The decision, which was expected, ups the ante in what has become a dangerous confrontation between prosecutorial needs and the ability of journalists to do their jobs without being threatened with imprisonment. Unless the full appeals court or the Supreme Court intervenes, Judith Miller of the New York Times and Matthew Cooper of Time magazine will face a terrible choice: be jailed or break the solemn promise of confidentiality that underlies much essential journalism. Either the Supreme Court or Congress should relieve them of that burden.
The three-judge panel rejected arguments that the First Amendment creates a privilege against compelling reporters to reveal their sources in criminal investigations. And while the judges split on whether to recognize a more limited privilege as matter of judicial policy, they all agreed that, as Judge David B. Sentelle put it, "if such a privilege applies here, it has been overcome" by evidence submitted in secret by special counsel Patrick J. Fitzgerald. The decision, therefore, offers the Supreme Court a chance to reconsider its 1972 decision in Branzburg v. Hayes or to recognize a privilege under federal court rules. In Branzburg, the court declined to recognize a reporter's right under the First Amendment to remain silent about sources before a grand jury. Lower courts, relying on the narrow split in the case and on the separate opinion of the justice whose vote gave the Supreme Court its majority, have often recognized the privilege in other contexts. But Branzburg considerably ties the hands of any lower court. The Supreme Court, by contrast, is free to rethink the question, as Judge David S. Tatel pointed out in a separate opinion. We don't underestimate Mr. Fitzgerald's investigative needs, but the alarming proliferation of civil and criminal cases in which reporters are being forced to reveal their sources begs for a fresh look.
(More ... A Shield for a Free Press (washingtonpost.com)) ¶ 18:41
THE U.S. COURT of Appeals for the District of Columbia Circuit yesterday affirmed a lower-court ruling that holds two reporters in contempt for refusing to testify in the federal investigation of the leak of Valerie Plame's identity as a covert CIA operative. The decision, which was expected, ups the ante in what has become a dangerous confrontation between prosecutorial needs and the ability of journalists to do their jobs without being threatened with imprisonment. Unless the full appeals court or the Supreme Court intervenes, Judith Miller of the New York Times and Matthew Cooper of Time magazine will face a terrible choice: be jailed or break the solemn promise of confidentiality that underlies much essential journalism. Either the Supreme Court or Congress should relieve them of that burden.
The three-judge panel rejected arguments that the First Amendment creates a privilege against compelling reporters to reveal their sources in criminal investigations. And while the judges split on whether to recognize a more limited privilege as matter of judicial policy, they all agreed that, as Judge David B. Sentelle put it, "if such a privilege applies here, it has been overcome" by evidence submitted in secret by special counsel Patrick J. Fitzgerald. The decision, therefore, offers the Supreme Court a chance to reconsider its 1972 decision in Branzburg v. Hayes or to recognize a privilege under federal court rules. In Branzburg, the court declined to recognize a reporter's right under the First Amendment to remain silent about sources before a grand jury. Lower courts, relying on the narrow split in the case and on the separate opinion of the justice whose vote gave the Supreme Court its majority, have often recognized the privilege in other contexts. But Branzburg considerably ties the hands of any lower court. The Supreme Court, by contrast, is free to rethink the question, as Judge David S. Tatel pointed out in a separate opinion. We don't underestimate Mr. Fitzgerald's investigative needs, but the alarming proliferation of civil and criminal cases in which reporters are being forced to reveal their sources begs for a fresh look.
(More ... A Shield for a Free Press (washingtonpost.com)) ¶ 18:41
