WASHINGTON - News reporters do not have a First Amendment right to refuse to testify about their conversations with government officials, a U.S. appeals court said yesterday, upholding a judge's order that could put reporters from Time magazine and The New York Times in jail.
The decision by the U.S. Court of Appeals for the District of Columbia, the most recent to threaten reporters with imprisonment, seems likely to accelerate congressional efforts to pass a "shield" law allowing reporters to keep the identities of their sources secret.
Matthew Cooper of Time and Judith Miller of The New York Times face contempt of court charges for refusing to tell prosecutors about their confidential talks with officials in the Bush White House who revealed the identity of a CIA operative.
The appeals court, in a 3-0 ruling, held that the constitutional protection of freedom of the press does not give reporters an "exemption from an ordinary duty of all citizens to furnish relevant information to a grand jury."
Floyd Abrams, the lawyer for both reporters, said he would ask the full appeals court to reverse yesterday's ruling. He previously has said the reporters would appeal to the Supreme Court if necessary.
Press advocates said they could not remember a time in the last 30 years when so many journalists have been faced court orders and the threat of jail - in cases ranging from the Major League Baseball steroid scandal to the investigation of the 2001 anthrax attacks to a City Hall corruption case in Providence, R.I.
The cases appear to be creating unusual solidarity among the news media and some Washington lawmakers on the need for a law to protect journalists.
Members of the House and Senate recently introduced identical measures that would give reporters absolute protection against the forced disclosure of confidential news sources.
After three decades of halting discussion about such a privilege - dating to the Watergate era - the legislation has won initial support across the ideological spectrum.
"The issue surrounding freedom of the press transcends arguments over the ideology or the competence of present-day media," said Indiana Rep. Mike Pence, who is co-sponsor of the legislation and chairman of the House's conservative Republican Study Committee.
"Americans love to hate journalists almost as much as they love to hate politicians. But we are united in our understanding that a free and independent press is central to the survival of liberty," Pence said.
"This decision makes it perfectly clear that this bill is critically needed to provide for a free flow of information to the press and to the American people," said Sandy Baron, executive director of the Media Law Resource Center, which advocates on behalf of news outlets.
Two of the three judges said in separate opinions that it may be up to Congress or the Supreme Court to decide where there should be a privilege for news reporters - similar to the ones in the law that protect communications doctors and lawyers have with their clients.
Others have argued against special treatment for journalists. The media has found itself in an awkward position in the CIA case - essentially asking for special protection "to conceal what members of the government may be doing in the commission of the crime," said First Amendment attorney Bruce Fein.
Pointing to Watergate, the Iran-contra investigation of the Reagan administration and the Whitewater probe of President Clinton, Fein argued that the press has proven it does not need protections to get information from confidential sources.
The case that threatens Miller and Cooper with jail surfaced in July 2003, when retired U.S. diplomat Joseph Wilson wrote a newspaper column accusing President Bush of "misrepresenting the facts" when he suggested that Iraqi dictator Saddam Hussein had sought uranium in Africa for use in nuclear weapons. Wilson based his comments on his personal investigation in Niger.
In response, conservative columnist Robert Novak reported that "two senior administration officials" had told him it was Wilson's wife, CIA "operative" Valerie Plame, who pressed to have her husband sent on the uranium investigation.
Since it can be a crime to knowingly reveal the name of an undercover CIA agent, then-Attorney General John Ashcroft named a special prosecutor to consider whether White House aides broke the law. Some viewed the disclosure as retaliation for Wilson's stand against the president.
Special prosecutor Patrick J. Fitzgerald received the backing of a district court judge in demanding that the reporters reveal who talked to them about Plame. Novak has not revealed whether he was subject to a subpoena.
U.S. courts have recognized that lawyers may protect the secrets of their clients. A wife may refuse to testify about her husband, and psychotherapists may refuse to disclose what their patients have told them in private.
But the law has been less uniform in its recognition of a privilege protecting communications between journalists and their sources.
In a 1972 decision, the Supreme Court ruled that a reporter can be called to testify before a grand jury about confidential information, but a majority of justices appeared to open the door to the concept of a special protection for the press.
Thirty-one states and the District of Columbia have created shield laws guarding at least some of the communications.
But those laws have not prevented state and, particularly, federal judges from issuing a series of rulings seeking to get reporters to disclose who gave them information.
Facing the prospect of jail, the reporters in the Plame case said they had no intention of revealing their sources.
Miller said the case had a particularly "Orwellian" twist, because she never wrote a story about Plame.
Nonetheless, Miller said: "I have to be willing to go to prison. I think the principles at stake in this case are so important to the functioning of a free press and to the confidentiality of sources that I just have to be willing to do that."
The Los Angeles Times is a Tribune Publishing newspaper.