Supreme Court declined yesterday to hear their appeals of a ruling finding
them in contempt of court for refusing to disclose their sources.
The decision could have a chilling effect on both reporters who rely on
confidential sources to do their jobs and sources who come forward with
sensitive information only because their identities will be protected,
journalists said yesterday.
Matthew Cooper of Time magazine and Judith Miller of The New York Times
were held in contempt of court last fall for refusing to tell a grand jury the
source or sources who told them the identity of a covert CIA agent. Both have
been free while the lower court rulings were appealed.
Because the Supreme Court decided not to take the case, it will return to
federal district court in Washington. Attorneys for the two journalists are
expected to meet with Chief District Judge Thomas F. Hogan this week to
determine whether they will be confined at home or in a city or federal
facility.
In a statement yesterday, Miller said, “Journalists simply cannot do their
jobs without being able to commit to sources that they won’t be identified.
Such protection is critical to the free flow of information in a democracy.”
Privilege doesn’t apply
She and Cooper had argued that reporters have been granted the privilege of
protecting their sources. The lower courts hearing their cases, however, have
ruled that journalists do not enjoy this privilege.
And the Supreme Court decision not to hear the appeals upholds those
rulings, said Patrick J. Fitzgerald, the special counsel investigating the
leak.
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“Further, the lower courts also held that even if a qualified privilege
existed, the Special Counsel’s reasons for needing the reporters’ testimony
overcame any such privilege, and the Court of Appeals said the government had
shown a `critical need’ for the reporters to comply with the subpoenas,”
Fitzgerald said in a statement.
The cases stem from a July 2003 column by Robert Novak, in which he
published the name of CIA covert agent Valeria Plame, noting that she was “an
Agency operative.”
The disclosure of an agent’s identity can be a federal crime, and a probe
was launched.
Cooper wrote about the disclosure for Time.com, and Miller did reporting –
but never wrote – about it.
One of the more confusing aspects of the case is the question of why Novak
is not facing jail time in the matter. He has not disclosed whether he
received a subpoena or has cooperated with the grand jury investigation.
Reacting to the Supreme Court’s decision yesterday, other journalists said
they hope the case shows the public how seriously reporters take their jobs
and their promises of confidentiality to sources. They said that it would be a
disservice to democracy if reporters were intimidated by the decision.
‘Be inspired, not scared’
“I hope they’ll see it and be inspired, not scared, that two of their
colleagues are doing the right thing at no small personal cost,” said David
Remnick, editor of The New Yorker. “Reporters have gone, unfortunately, to
court before and they’ve gone to jail before and thankfully there are still
those people with the courage to talk to journalists when they feel that is
the right thing to do.”
Reporters increasingly are threatened with punishment for protecting
sources. At least nine reporters currently face sanctions in federal cases.
Last year, a federal judge in Rhode Island sentenced a television news
reporter to six months of home confinement for refusing to reveal a source in
a 2001 federal corruption case.
Investigative reporter Jim Taricani, who has since returned to work at WJAR
in Providence, was found in contempt for refusing to identify from whom he
obtained an FBI videotape of a former mayoral aide taking a bribe. The tape
was part of a racketeering corruption probe that ultimately sent former
Providence Mayor Vincent Cianci to federal prison.
“Sometimes we need anonymous sources to convey important information to the
public. Without that, the public loses,” Taricani said yesterday after the
Supreme Court declined the case. “All I can say is, it’s not healthy for
democracy – and not healthy for journalism, for sure.”
In April, Taricani completed four months of home detention. The 55-year-old
heart transplant recipient was allowed to serve his sentence at home because
of his health.
Other writers have been jailed for refusing to reveal their sources: In
2001, for example, Vanessa Leggett of Houston was jailed for 168 days for
refusing to identify sources she spoke to in researching a crime book.
In a world in which the United States is often seen as a model for press
freedom, yesterday’s decision could send a signal that coercive tactics are
acceptable, said Andrew Alexander, chairman of the American Society of
Newspaper Editors’ Freedom of Information Committee.
“I’m certain that reporters will continue to assure confidential sources
that they’re willing to go to jail rather than reveal their identities,” said
Alexander, Washington bureau chief for Cox newspapers. “But I think the
court’s decision will make sources more reluctant to come forward.”
Shield law hopes
There has been some support for the rights of reporters.
A bill to create federal shield law giving reporters the privilege to
protect the identity of their sources has been introduced in the House and
Senate, with bipartisan support. Also, 34 state attorneys general – including
Maryland’s J. Joseph Curran Jr. – signed a brief supporting Miller and Cooper.
“Everybody agrees that journalists use too many unnamed sources,” said
Thomas Kunkel, dean of the journalism school at the University of Maryland.
“But the fact is some of the most important work we do couldn’t happen without
confidential sources.”