Cover story -- Journalists under fire
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Issue Date:  December 17, 2004

Threats of jail: Is journalism's 'fragile privilege' at risk?

Reporters face growing legal pressures to reveal sources


Tape recorder, pen, notebook and laptop: These are the typical tools of the journalism trade. But recently, the list of must-have items has grown. It now includes a good lawyer.

That’s because reporters have been slapped with an ever-increasing number of subpoenas containing demands to disclose confidential sources. The subpoenas are often part of government leak investigations. The leaks include the identities of both a covert CIA operative and a nuclear scientist once suspected of espionage, as well as videotape showing a former mayor allegedly accepting a bribe from an undercover FBI agent. For reporters who cling to the claim that the First Amendment shields them from subpoenas and protects the identity of their confidential sources, contempt orders, hefty fines and a jail bed await.

In many of the high-profile cases, it is the U.S. Justice Department that is trying to force the revelations, despite a department guideline that recognizes the importance of the newsgathering process and warns that subpoenas should be limited to verifying published information and used only when “essential” to an investigation.

The guideline was issued, in part, as a response to a 1972 Supreme Court case. That case, Branzburg v. Hayes, was a split decision that handed a defeat to journalists. In a 5 to 4 vote, the majority held that the “First Amendment does not relieve a newspaper reporter of the obligation all citizens have to respond to grand jury subpoenas.” However, Justice Lewis F. Powell, who was part of the majority, also filed a separate concurring opinion in which he argued that a balancing test between the freedom of the press and the obligation to testify about criminal conduct should be used in each case.

It was the four judges with the losing view who wrote that the First Amendment protects journalists and that the majority’s decision “reflects a disturbing insensitivity to the critical role of an independent press in our society.”

Before that decision, only a handful of states had reporter shield laws or recognized a reporter’s privilege. After Branzburg, the number of states recognizing a reporter’s privilege rose to 49 states and the District of Columbia. But the Justice Department’s cases are in federal court, and there is no federal reporter’s shield law. Yet as long as the federal grand jury subpoenas for reporters were viewed as a last resort, there seemed little need for one.

But times have changed.

When the World Trade Center’s Twin Towers crumbled in a terrorist attack, aggressive measures to protect national security rose up from the ashes of 9/11. At about the same time, the media’s reputation plummeted, shaken not only by the overuse of anonymous sources but also by scandal, ranging from the fake articles penned by New York Times reporter Jayson Blair to Dan Rather’s reliance on questionable memos to charge that President George W. Bush received favorable treatment while serving in the Texas Air National Guard.

Arguing that newsgathering doesn’t trump crime fighting, Attorney General John Aschcroft’s Justice Department has doggedly pressed reporters to tell grand jurors who had been feeding them insider information. Subpoenas are going out to reporters who have written articles with the anonymous information and those who never published a piece containing tidbits supplied by a confidential source.

But the subpoenas are meeting stubborn resistance. Many reporters have refused to reveal the information and contempt orders against them have been issued. News organizations such as The New York Times, The Washington Post, Dow Jones and Company, Gannett Company, Bloomberg and Fox News are asking courts to recognize a reporter’s privilege. Without such privilege, news organizations worry that subpoenas will be used to harass journalists and intimidate government workers. Journalists will no longer be able to report about corruption and abuse, and readers will no longer be able to keep tabs on their government.

The showdown will inevitably affect a public that has so far been ambivalent, torn between wondering if the subpoenas are a long overdue curb on irresponsible journalists or an alarming government crackdown that should be stopped.

The Plame case

The unprecedented wave of subpoenas has spawned a fresh review by courts of what media law professor Jane Kirtley called a “fragile privilege.” The outcome hasn’t been journalist-friendly.

In October, Judith Miller of The New York Times and TIME magazine reporter Matthew Cooper were fined $1,000-a-day and ordered to jail after refusing to reveal to a federal grand jury the name of the person who disclosed that Valerie Plame, wife of former U.S. Ambassador Joseph Wilson, was a covert CIA operative on weapons of mass destruction. The judge suspended the contempt order until an appeals court can review it.

The flap started in July 2003. That’s when The New York Times published an op-ed article written by Wilson. In the piece, “What I Didn’t Find in Africa,” Wilson wrote that in order for the Bush administration to justify the Iraq invasion “some of the intelligence related to Iraq’s nuclear program was twisted to exaggerate the Iraqi threat.”

Eight days later, syndicated columnist Robert Novak wrote “Mission to Niger,” which questioned Wilson’s claim that he’d been sent to Africa by Vice President Dick Cheney. Instead, Novak wrote that Wilson’s wife, Valerie Plame, was a Central Intelligence Agency “operative on weapons of mass destruction. Two senior administration officials told me Wilson’s wife suggested sending him to Niger to investigate.”

When the piece was published, many questioned Novak’s decision to reveal Plame’s name. Jane Kirtley, the Silha professor of media ethics and law at the University of Minnesota, said, “I really don’t understand why her name was published. He could have made his point without actually including her name. From an ethical standpoint, I’m hard pressed to see what the journalistic reason was for having done that.”

And while Novak was first with the scoop, it is believed that a White House insider shopped the information around to several reporters.

Three days after Novak’s article, TIME magazine’s Matthew Cooper wrote an online story that also stated that government officials had informed the magazine of Plame’s identity.

A political furor erupted over the Plame leak. And because it is a federal crime to expose a covert government agent’s identity, the furor then turned into a federal criminal investigation complete with a special prosecutor.

Kirtley stresses that in the Plame case, reporters haven’t violated the law. “It isn’t against the law for journalists to get the information nor is it against the law for them to publish it.”

But they are a direct connection to those who may have broken the law.

Grand jury subpoenas were issued for NBC’s reporter Tim Russert, Walter Pincus and Glenn Kessler of The Washington Post as well as Miller and Cooper.

Novak’s status is a mystery. Grand jury subpoenas are secret, so there’s no paper trail or news release from the special prosecutor’s office. Unlike the other reporters who have been called to testify, Novak has so far been silent about whether he’s been targeted. To many outside observers it seems patently unfair to subpoena -- or send to jail -- reporters who never wrote a story or weren’t the first to reveal the information.

But Ed Dowd, former U.S. attorney for the Eastern District of Missouri and deputy special counsel in the investigation into the 1983 Waco siege, explains one possible reason so many reporters outside of Novak are caught in the web of this special investigation.

“Each time a government employee leaked it, it could be a separate offense,” said Dowd. If it was leaked to five different reporters, then there are five separate crimes. Under the federal sentencing guidelines, the addition of criminal charges means greatly enhanced penalties. “If you had multiple counts, you would serve significantly more time,” noted Dowd, now a partner at the Bryan Cave law firm in St. Louis.

In the Plame case, the grand jury proceedings are closed and so is much of the trial court’s file, which means that the special prosecutor’s reasoning behind his acts is hard to discern.

It is known, however, that after initially resisting, both Russert and Pincus testified. The Washington Post stated that confidential source identity wasn’t revealed; NBC News indicated that the testimony was limited to conversations with the vice president’s chief of staff, who had signed a confidentiality waiver.

Cooper and Miller fought the subpoenas, arguing that the information is protected by a reporter’s privilege, rooted either in the First Amendment, federal common law, or a District of Columbia reporter’s shield statute. But U.S. District Court Judge Thomas F. Hogan rejected the arguments.

Going back to Branzburg, he ruled that there isn’t a First Amendment privilege that exempts the press from testifying before a grand jury. And Hogan stated that even if he recognized a qualified reporter’s privilege rather than absolute -- meaning a privilege that is balanced against other needs -- the reporters would still lose. “The public’s interest in fighting crime outweighed any burden on newsgathering that would result from requiring reporters to testify before a grand jury,” the court wrote.

Hogan found Miller and Cooper in contempt. And they aren’t the only ones who have had their First Amendment and reporter’s privilege claims rebuffed.

In August, a federal judge held the five reporters in contempt, fining them $500 a day for refusing to disclose the source that identified former Los Alamos Laboratory scientist Wen Ho Lee as a prime espionage suspect. Lee subpoenaed journalists from The New York Times, Los Angeles Times, The Associated Press and a former CNN reporter in a civil suit against federal employees, claiming they violated the Privacy Act. The judge delayed enforcing the fines while an appeal of the order is pending.

The same month, a federal judge entered a $1,000-a-day fine against a Providence, R.I., television investigative reporter Jim Taricani, who refused to identify the individual who gave him an FBI tape showing an elected official accepting a bribe. A special prosecutor was appointed to investigate the leak. The court found Taricani in criminal contempt and gave him until Nov. 18 to divulge his source’s identity. Taricani refused. So on Dec. 9, a federal judge was expected to deliver Taricani’s sentence, which could include up to six months in jail.

Changed media landscape

Many observers expect that the issue of a reporter’s privilege is headed once again to the U.S. Supreme Court. And the matter most likely to arrive there first is the Plame investigation. If the court considers the case, they’ll be looking at a media landscape that has changed over the past 34 years, one that has witnessed the rise of powerful articles based on anonymous sources and confidential leaks.

The most famous confidential source is “Deep Throat,” the insider who leaked information to Washington Post reporters Bob Woodward and Carl Bernstein about President Richard Nixon’s involvement in the burglary of the Democratic National Committee headquarters at the Watergate Hotel. The leaks triggered a political scandal that eventually led to the president’s resignation.

More recently, a confidential report prepared by the International Committee of the Red Cross detailing prisoner abuse at the U.S.-run Abu Ghraib prison in Iraq was leaked. The leak led to congressional inquiries, military investigations and unleashed worldwide criticism.

Recently reporters used leaked information from grand jury testimony detailing steroid use by professional athletes including Barry Bonds, Jason Giambi and Gary Sheffield. Whether they knew at the time that they were taking steroids is still an open question. But the revelations had triggered calls for more heightened drug testing and even talks of legislation.

However, the information about Plame is different. The leaker wasn’t a whistleblower. And the information didn’t seem to educate the public about government corruption, abuse or drug scandals. It looked more like a cowardly attack on the opponent of White House policy.

Even Kirtley noted that in the Plame matter, it is “much harder to make the case that there was a compelling public interest in publishing the name of Valerie Plame. This isn’t the Pentagon Papers.”

And for that reason, Dowd questions whether the press should really use Plame as the case to square off against the Justice Department. Because courts must decide cases on the facts presented and not issue broad policy statements, a weak set of facts can produce bad precedent.

But the press may not have much choice. The Plame investigation is a grand jury criminal investigation. That means it will likely be on a faster track for a decision than a case like that of Lee. And so the case marches forward. A friend of the court brief was filed with the District of Columbia Court of Appeals on behalf of 23 media organizations urging the court to adopt a federal privilege for reporters.

Kirtley warns that whether the Plame leak is viewed as “good or bad in an absolute sense,” what is at stake is “a net loss of information to the public.” If the courts or the lawmakers don’t recognize a reporter’s privilege and journalists are forced to reveal their sources, she fears that the public will see “official government news releases” passed off as news.

Geri L. Dreiling is a St. Louis lawyer and freelance writer.

National Catholic Reporter, December 17, 2004

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