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 finding them in contempt of court for refusing to disclose their sources.
The decision could have a chilling effect on both reporters who rely on confidential sources to do their jobs and sources who come forward with sensitive information only because their identities will be protected, journalists said yesterday.
Matthew Cooper of Time magazine and Judith Miller of The New York Times were held in contempt of court last fall for refusing to tell a grand jury the source or sources who told them the identity of a covert CIA agent. Both have been free while the lower court rulings were appealed.
Because the Supreme Court decided not to take the case, it will return to federal district court in Washington. Attorneys for the two journalists are expected to meet with Chief District Judge Thomas F. Hogan this week to determine whether they will be confined at home or in a city or federal facility.
In a statement yesterday, Miller said, "Journalists simply cannot do their jobs 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 of protecting their sources. The lower courts hearing their cases, however, have ruled that journalists do not enjoy this privilege.
And the Supreme Court decision not to hear the appeals upholds those rulings, said Patrick J. Fitzgerald, the special counsel investigating the leak.
"Further, the lower courts also held that even if a qualified privilege existed, the Special Counsel's reasons for needing the reporters' testimony overcame any such privilege, and the Court of Appeals said the government had shown 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 he published the name of CIA covert agent Valeria Plame, noting that she was "an Agency operative."
The disclosure of an agent's identity can be a federal crime, and a probe was 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 Novak is not facing jail time in the matter. He has not disclosed whether he received a subpoena or has cooperated with the grand jury investigation.
Reacting to the Supreme Court's decision yesterday, other journalists said they hope the case shows the public how seriously reporters take their jobs and their promises of confidentiality to sources. They said that it would be a disservice 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 their colleagues are doing the right thing at no small personal cost," said David Remnick, editor of The New Yorker. "Reporters have gone, unfortunately, to court before and they've gone to jail before and thankfully there are still those people with the courage to talk to journalists when they feel that is the right thing to do."
Reporters increasingly are threatened with punishment for protecting sources. At least nine reporters currently face sanctions in federal cases.
Last year, a federal judge in Rhode Island sentenced a television news reporter to six months of home confinement for refusing to reveal a source in a 2001 federal corruption case.
Investigative reporter Jim Taricani, who has since returned to work at WJAR in Providence, was found in contempt for refusing to identify from whom he obtained an FBI videotape of a former mayoral aide taking a bribe. The tape was part of a racketeering corruption probe that ultimately sent former Providence Mayor Vincent Cianci to federal prison.
"Sometimes we need anonymous sources to convey important information to the public. Without that, the public loses," Taricani said yesterday after the Supreme Court declined the case. "All I can say is, it's not healthy for democracy - and not healthy for journalism, for sure."
In April, Taricani completed four months of home detention. The 55-year-old heart transplant recipient was allowed to serve his sentence at home because of his health.
Other writers have been jailed for refusing to reveal their sources: In 2001, for example, Vanessa Leggett of Houston was jailed for 168 days for refusing 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 press freedom, yesterday's decision could send a signal that coercive tactics are acceptable, said Andrew Alexander, chairman of the American Society of Newspaper Editors' Freedom of Information Committee.
"I'm certain that reporters will continue to assure confidential sources that they're willing to go to jail rather than reveal their identities," said Alexander, Washington bureau chief for Cox newspapers. "But I think the court'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 to protect the identity of their sources has been introduced in the House and Senate, with bipartisan support. Also, 34 state attorneys general - including Maryland's J. Joseph Curran Jr. - signed a brief supporting Miller and Cooper.
"Everybody agrees that journalists use too many unnamed sources," said Thomas 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 without confidential sources."