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Editorial
A Shield for a Free Press

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.

The more promising route may be legislative. Nearly all states have statutes or case law that, to some degree, protects a reporter's ability to keep sources confidential. The federal government is a big exception. Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) recently introduced legislation to limit subpoenas of reporters and to prevent the compelled disclosure of confidential sources. Richard G. Lugar (R-Ind.) introduced the same bill in the Senate. (The Post is fighting subpoenas in court and, along with other media organizations, supported Mr. Cooper and Ms. Miller's appeal in a friend-of-the-court brief. Post officials are actively backing legislation to enact the privilege.) This would hardly be a dramatic step: Federal courts already refrain from forcing psychotherapists to disclose conversations with patients, priests from violating the silence of the confessional and attorneys from giving up client secrets. The rationale is that securing certain professional communications warrants giving up certain evidence. The function that journalists carry out in bringing important information to the public and enabling democratic debate merits a similar shield.

http://www.editorandpublisher.com/eandp/ne...t_id=1000806468


In Wake of Plame Ruling, Federal Shield Law Seen as Best Hope

By Joe Strupp

Published: February 16, 2005 12:40 PM ET

NEW YORK As the fallout continues from a federal appeals court's rejection yesterday of two reporters' claims that they should avoid jail for refusing to reveal sources in the Valerie Plame case, news industry advocates are urging passage of a proposed federal shield law as the best way to counter such legal actions in the future.

Hopes hang on two versions of such a law that were introduced earlier this month in the House and Senate. Each would provide protection similar to that of shield laws currently on the books in 31 states and the District of Columbia.

The Reporters Committee for Freedom of the Press yesterday called for a "coordinated effort" to support a federal shield law in the wake of the unanimous decision by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. That ruling denied an appeal from Judith Miller of The New York Times and Matthew Cooper of Time magazine, who were ordered jailed last fall for up to 18 months for refusing to disclose sources that leaked to them the identity of CIA Agent Valerie Plame. Lawyers for both plan to appeal, likely delaying any jail time for at least several weeks or months.

The ruling has heightened concerns about the need for a federal law in the wake of not just the Plame case but also several other federal investigations from Washington to San Francisco that have resulted in subpoenas or demands for sources from numerous reporters. While more than half the states have shield laws, none exist at the federal level.

"The decision in this case underscores that these are perilous times for journalists and the public's right to know," said Lucy Dalglish, the Reporters Committee executive director. "There are more than two dozen cases pending across the United States where journalists are being asked to operate as investigators for the government and litigants. The ability of the media to act as independent sources of information for the public is in jeopardy."

George Freeman, a New York Times attorney who has worked on the paper's defense of reporters in several cases, agreed that a federal law is imperative. "There is an inequity between the state and federal courts on this," Freeman told E&P today. "This would provide similar protection."

Two similar shield bills have been introduced in Congress in the past two weeks.

The first, H.R. 581, is co-sponsored by Rep. Mike Pence (R-Ind.) and Rep. Rick Boucher (D-Va.) and was introduced Feb. 2. The Senate version, S. 3440, is authored by Sen. Richard Lugar (R-Ind.), who introduced it on Feb. 9. Sen. Chris Dodd (D-Conn.) offered his own bill in late 2004, but has yet to introduce a new version for the current session.

"Reporters rely on the ability to assure confidentiality to sources in order to deliver news to the public, and the ability of news reporters to assure confidentiality to sources is fundamental to their ability to deliver news on highly contentious matters of broad public interest," Boucher said in a statement after introducing his bill. "Without the promise of confidentiality, many sources would not provide information to reporters and the public would suffer from the resulting lack of information."

Freeman said the bi-partisan sponsorship is a strong sign that the issue is not being treated as just a political battle. "We're heartened that we have support from both sides of the aisle," he said. "I think everyone in Washington realizes this is the way information gets to the public."

Still, even the strongest supporters realize that the chances of getting a bill passed this year and signed by President Bush, who has shown little support for press access and rights, is slim. But they realize that just debating the issue in congress can move such laws a step closer to reality.

Irwin Gratz, president of the Society of Professional Journalists and a producer at Maine Public Radio, agreed that the pending bills are important as a strong response to the federal court actions. "Clearly, it would help us in a lot of places where there is no protection," he told E&P. "Reporters are pretty naked on this issue. We presume to have a First Amendment protection, but we really don't have much of anything nationally."

Bob Steele, the Nelson Poynter Scholar for Journalism Values at the Poynter Institute, also supported such a law. But, he stressed that even a federal shield statute would not give blanket protection on confidential sources.

"It is one step and it is a less-than-perfect step," Steele said. "It would not be absolute. Journalists would still have to justify in some cases why the shield law applies."