(U-WIRE) WASHINGTON – It’s a reporter’s consequential dilemma: Reveal your unnamed source as evidence in a grand jury case, or risk months of jail time if you refuse.
Matthew Cooper of Time Magazine and Judith Miller of the New York Times have been in this quandary for months, after refusing to reveal their source in the CIA leak of Valerie Plame’s name. On Feb. 15, the DC Court of Appeals rejected their appeal, and the two are being held in contempt of court, facing 18 months in jail.
“This is the most significant case in reporters being compelled to testify to reveal sources in this generation,” says George Washington University journalism professor Mark Feldstein. “If reporters have to fear jail every time they get a confidential tip, we will all know less.”
In his career, Feldstein has been subpoenaed half a dozen times to give up his confidential sources, and even once packed his bag in preparation for jail. Although Feldstein never had to spend a day behind bars, he says the case could make future journalists more cautious about giving grants of confidentiality to avoid prison time.
“No source wants to talk to a reporter that gives up their name on confidential information,” Feldstein says. “It’s crucial to their livelihood, and more important it is crucial to the public. Even if this case is settled in a compromise, reporters now have to think before they promise confidentiality if they are really willing to go to prison.”
The courts and special prosecutor, Chicago U.S. Attorney Patrick Fitzgerald, are demanding that Cooper and Miller divulge before a grand jury who told them that Valerie Plame was an undercover CIA operative. Plame is married to former Ambassador Joseph Wilson, who was one of harshest critics of the Bush administration’s claims about Saddam Hussein’s stockpile of nuclear weapons. Officials want their testimony as part of an investigation into whether members of Bush’s team intentionally leaked Plame’s name — a federal offense.
Plame’s information first appeared in the summer of 2003 in a syndicated column by Robert Novak. Three days after Novak’s article, Cooper posted a story on the magazine’s Web site saying he had received similar information about Plame. Miller reported on the leak, but never published an article.
Novak has refused to say whether he has testified or been subpoenaed, but both news organizations say they will not give up their fight for Miller and Cooper and are challenging the ruling.
“I think it is an unfortunate decision,” says Jerome Barron, a First Amendment law professor at the George Washington University. “The press should not be conscripted to do investigative work for the government. In a case like this when the government has adequate means of investigation, they should not rely on journalists.”
The case marks the first time in more than 30 years that a federal appeals court discussed whether reporters can be forced to disclose an unnamed source when a prosecutor is investigating a crime. In the 1972 case Branzburg v. Hayes, the Supreme Court ruled that the reporter, who witnessed a drug manufacturing ring, could be compelled to reveal a source’s identity if it is crucial to solving a crime. Since the 1960s, 25 American journalists have gone to jail in order to keep a promise of confidentiality to a source.
In the Cooper and Miller case, the Court ruled that reporters hold no First Amendment privilege to conceal information in criminal inquiry. Lawyers for Time and the Times plan to appeal the decision to the entire Appeals Court, and perhaps even to the Supreme Court, in hopes of keeping their sources unidentified and their reporters out of jail.
“I believe that journalists have to be willing to face the idea of going to jail,” Feldstein says. “It is part of the responsibility of holding government accountable, and you have to be willing to pay that price of civil disobedience if that is what it comes down to.”
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