High court refuses appeal of 2 reporters facing jail

Sun Staff

Two journalists could be jailed as early as this week after the U.S. Supreme Court declined yesterday to hear their appeals of a ruling findingthem in contempt of court for refusing to disclose their sources.

The decision could have a chilling effect on both reporters who rely onconfidential sources to do their jobs and sources who come forward withsensitive information only because their identities will be protected,journalists said yesterday.

Matthew Cooper of Time magazine and Judith Miller of The New York Timeswere held in contempt of court last fall for refusing to tell a grand jury thesource or sources who told them the identity of a covert CIA agent. Both havebeen free while the lower court rulings were appealed.

Because the Supreme Court decided not to take the case, it will return tofederal district court in Washington. Attorneys for the two journalists areexpected to meet with Chief District Judge Thomas F. Hogan this week todetermine whether they will be confined at home or in a city or federalfacility.

In a statement yesterday, Miller said, "Journalists simply cannot do theirjobs without being able to commit to sources that they won't be identified.Such protection is critical to the free flow of information in a democracy."

Privilege doesn't apply

She and Cooper had argued that reporters have been granted the privilege ofprotecting their sources. The lower courts hearing their cases, however, haveruled that journalists do not enjoy this privilege.

And the Supreme Court decision not to hear the appeals upholds thoserulings, said Patrick J. Fitzgerald, the special counsel investigating theleak.

"Further, the lower courts also held that even if a qualified privilegeexisted, the Special Counsel's reasons for needing the reporters' testimonyovercame any such privilege, and the Court of Appeals said the government hadshown a `critical need' for the reporters to comply with the subpoenas,"Fitzgerald said in a statement.

The cases stem from a July 2003 column by Robert Novak, in which hepublished the name of CIA covert agent Valeria Plame, noting that she was "anAgency operative."

The disclosure of an agent's identity can be a federal crime, and a probewas launched.

Cooper wrote about the disclosure for Time.com, and Miller did reporting -but never wrote - about it.

One of the more confusing aspects of the case is the question of why Novakis not facing jail time in the matter. He has not disclosed whether hereceived a subpoena or has cooperated with the grand jury investigation.

Reacting to the Supreme Court's decision yesterday, other journalists saidthey hope the case shows the public how seriously reporters take their jobsand their promises of confidentiality to sources. They said that it would be adisservice to democracy if reporters were intimidated by the decision.

'Be inspired, not scared'

"I hope they'll see it and be inspired, not scared, that two of theircolleagues are doing the right thing at no small personal cost," said DavidRemnick, editor of The New Yorker. "Reporters have gone, unfortunately, tocourt before and they've gone to jail before and thankfully there are stillthose people with the courage to talk to journalists when they feel that isthe right thing to do."

Reporters increasingly are threatened with punishment for protectingsources. At least nine reporters currently face sanctions in federal cases.

Last year, a federal judge in Rhode Island sentenced a television newsreporter to six months of home confinement for refusing to reveal a source ina 2001 federal corruption case.

Investigative reporter Jim Taricani, who has since returned to work at WJARin Providence, was found in contempt for refusing to identify from whom heobtained an FBI videotape of a former mayoral aide taking a bribe. The tapewas part of a racketeering corruption probe that ultimately sent formerProvidence Mayor Vincent Cianci to federal prison.

"Sometimes we need anonymous sources to convey important information to thepublic. Without that, the public loses," Taricani said yesterday after theSupreme Court declined the case. "All I can say is, it's not healthy fordemocracy - and not healthy for journalism, for sure."

In April, Taricani completed four months of home detention. The 55-year-oldheart transplant recipient was allowed to serve his sentence at home becauseof his health.

Other writers have been jailed for refusing to reveal their sources: In2001, for example, Vanessa Leggett of Houston was jailed for 168 days forrefusing to identify sources she spoke to in researching a crime book.

In a world in which the United States is often seen as a model for pressfreedom, yesterday's decision could send a signal that coercive tactics areacceptable, said Andrew Alexander, chairman of the American Society ofNewspaper Editors' Freedom of Information Committee.

"I'm certain that reporters will continue to assure confidential sourcesthat they're willing to go to jail rather than reveal their identities," saidAlexander, Washington bureau chief for Cox newspapers. "But I think thecourt's decision will make sources more reluctant to come forward."

Shield law hopes

There has been some support for the rights of reporters.

A bill to create federal shield law giving reporters the privilege toprotect the identity of their sources has been introduced in the House andSenate, with bipartisan support. Also, 34 state attorneys general - includingMaryland's J. Joseph Curran Jr. - signed a brief supporting Miller and Cooper.

"Everybody agrees that journalists use too many unnamed sources," saidThomas Kunkel, dean of the journalism school at the University of Maryland."But the fact is some of the most important work we do couldn't happen withoutconfidential sources."

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