Bad choice: Giving up source or giving up freedom
By Paul K. McMasters
First Amendment Center
Last week, the courts delivered a one-two punch to journalists' ability to protect their sources — and to the public's right to know about federal officials abusing a public trust in one instance and the disappearance of nuclear secrets in another.
On Monday, the Supreme Court refused to review a lower court's jail sentence for two reporters who refused to give up confidential sources. A day later, a federal appeals court put four other reporters in a different case on the same path to incarceration.
Matthew Cooper of Time magazine and Judith Miller of The New York Times had asked the nation's court of last resort to review their contempt convictions for refusing to reveal their confidential sources. Special Prosecutor Patrick Fitzgerald sought their names as part of his investigation into the leaking of a covert agent's identity to columnist Robert Novak by senior White House officials.
In the other case, four reporters refused to divulge their sources in a civil lawsuit by former nuclear scientist Wen Ho Lee, seeking to find out who in the federal government leaked information about the scientist to the press in possible violation of the Privacy Act. The leaks occurred during an investigation of whether Lee mishandled nuclear-weapons information.
None of the reporters in these two cases actually committed a crime. Instead, jail time — or the threat of it — is viewed by prosecutors, plaintiffs' attorneys and judges as a way to coerce information from reluctant journalists.
The Supreme Court's rejection of the reporters' petitions for review was particularly dismaying for press advocates and others for a number of reasons.
The relevant Supreme Court decision on this subject, Branzburg v. Hayes (1972), though quite clear to some, created a muddle. The sharply divided opinion essentially left press lawyers and courts to parse the brief and somewhat inscrutable concurring opinion by Justice Lewis Powell for guidance.
Not surprisingly, lower courts have come up with differing interpretations on the scope of the reporter's privilege.
On their own, 49 states developed common-law or statutory shields to help reporters protect their sources. There is no federal law providing such protection, however.
The Justice Department developed guidelines that for some time helped balance the administration of justice and the First Amendment rights of the public and press, but in recent years the DOJ appears to have come unhinged from those guidelines.
As a result, more than two dozen journalists are now caught up in criminal and civil cases at the federal level. Whistleblowers with vital information to share with the public are more leery of confiding in journalists who may be forced to choose between protecting their identities and going to jail.
Rather than embrace the opportunity to reconcile and clarify this field strewn with conflict, confusion and contradictions, however, the Supreme Court turned away.
That leaves journalists with a wrenching choice: Go to jail, or give up their sources, thus violating one of journalism's most urgent principles, driving away future sources and depriving the public of something other than the official version of government policy and actions.
The Cooper and Miller case would be a travesty even if it had been clear that a federal crime had been committed, that all the relevant facts were known, and that two journalists really did stand in the way of justice. But none of that is clear.
In a hearing for Cooper and Miller on Wednesday, U.S. District Judge Thomas F. Hogan said from the bench that the case was getting "curiouser and curiouser."
A federal investigation stretching over two years and costing taxpayers millions of dollars apparently found no violation of the 1983 Intelligence Identities Act of 1983. That part of the investigation apparently ended last October. Then the investigation appears to have morphed into a quest to put the thumbscrews on two journalists, but not the one who actually outed the agent. That journalist, Novak, who wrote the column where it all began, remains silent and, as far as we know, untouched.
Further, in court, Cooper and Miller and their lawyers were at a real disadvantage. The law was a muddle. The special prosecutor was on a mission. The judge was sympathetic. And much of the legal communication between the prosecutor and the judge was secret.
Finally, this wrinkle: Over Cooper's objections, his employer, Time Inc., announced Thursday that it would turn over documents, including the reporter's notes, to the court — a remarkable move, apparently without precedent in modern press history.
It wasn't immediately clear how that development would affect Miller's case.
As compelling as the plight of the journalists in such cases may be, many Americans might be inclined to greet all this with a sneer or a yawn. That would be curious, indeed.
In fact, ordinary citizens have more of a stake in the issue than they might imagine. At risk is their ability to fully and effectively monitor government policy, hold public officials accountable, and participate more knowledgeably and effectively in civic affairs.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. Web: www.first