Tuesday, June 28, 2005

Journalist Privilege = Status Quo 

By declining to hear the appeals of two journalists who face prison for contempt of court arising from their refusal to disclose sources, the Supreme Court yesterday indefinitely tabled the issue of a federal evidentiary privilege for journalists. The journalists, Matthew Cooper of Time and Judith Miller of the NYT, now face up to 18 months in prison for refusing to comply with grand jury subpoenas. The MSM (a/k/a the "Exempt Media") is in a tizzy (dare I say "kerfuffle"?) over the decision, but I don't think it is as big a deal as they make it out to be.

First, some background. The two journalists were subpoenaed to testify before a grand jury investigating an alleged leak that disclosed the identity and status of Valerie Plame, a CIA operative, in violation of a Federal statute that makes it a crime to wilfully disclose the identity of an undercover CIA agent. Ms. Plame is the wife of Joseph Wilson, a former State Department official who wrote an opinion piece in the New York Times in which he said that he had been sent to Niger to investigate whether Saddam Hussein had tried to buy uranium there, and that his investigation led him to believe that no such attempt had been made. Not long after the NYT piece ran, columnist Robert Novak wrote that two "senior Administration officials" had told him Wilson was recommended for the assignment by his wife, Ms. Plame, who was a CIA expert on WMD. To the best of my memory, the MSM immediately erupted with stories and editorials about how a crime had been committed by the Bush Administration, demanding that a special prosecutor be appointed to look into the matter and making "cover-up" and "whitewash" noises. In due course, the grand jury investigation into the matter commenced, it came out that the alleged leaker(s) had peddled the story to several journalists, among them Cooper and Miller. The two were subpoenaed and refused to disclose the identity(ies) of the person(s) who had approached them, claiming journalist privilege deriving from the First Amendment.

The currently controlling Supreme Court case on the issue is Branzburg v. Hayes, decided in 1972. In that case the court refused to find a privilege applicable to a reporter who had written about drug trafficking and was subsequently called to testify. The court said that prosecuting a crime was a "compelling state interest" and that requiring the reporter to testify did not violate the First Amendment's protection of press freedom. Since Branzburg, many states have enacted statutes creating a journalistic privilege not to disclose sources, but Congress has never done so.

Boiled down to their essentials, the facts of the case are that a government official leaked information to several journalists, which leak might have been a crime per se. The journalists used the fact that the leak occured to criticize the administration and demanded that the government prosecute the leaker. The administration called the journalists' bluff and opened a grand jury investigation, and at least some of the journalists refused to identify the leaker.
So on the one hand the journalists were criticizing the administration for failure to go after the leaker, and on the other were refusing to identify the very same leaker. I.e., the source of the story was the alleged criminal!

I submit to you that these are lousy facts upon which to base a decision by the highest court in the land creating and defining the existence and scope of any journalistic privilege. Bill Dyer, a Texas trial lawyer who blogs under the pseudonym "Beldar" discusses why here and here.

The justices of the Supreme Court are not dummies, and I suspect the primary reason they rejected the appeal was the terrible factual basis of the case. Better to wait for cleaner facts before giving journalists the same privilege as a clergyman-confessor to keep a criminal's secrets.

UPDATE: For another view on this issue of journalistic privilege, go here.

UPDATE 2: Beldar comments again in response to William Safire's NYT opinion piece on the case.

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