Source confidentiality under fire
The U.S. Court of Appeals for the District of Columbia Circuit on Tuesday
affirmed a lower-court ruling that holds two reporters in contempt for
refusing to testify in the federal investigation of the leak of Valerie
Plame's identity as a covert CIA operative. The decision ups the ante
in what has become a dangerous confrontation between prosecutorial needs
and the ability of journalists to do their jobs without being threatened
with imprisonment.
Unless the full appeals court or the Supreme Court intervenes, Judith
Miller of The New York Times and Matthew Cooper of Time magazine will
face a terrible choice: be jailed or break the solemn promise of confidentiality
that underlies much essential journalism. Either the Supreme Court or
Congress should relieve them of that burden.
The three-judge panel rejected arguments that the First Amendment creates
a privilege against compelling reporters to reveal their sources in criminal
investigations. And while the judges split on whether to recognize a more
limited privilege as matter of judicial policy, they all agreed that,
“if such a privilege applies here, it has been overcome.”
The decision, therefore, offers the Supreme Court a chance to reconsider
its 1972 decision in Branzburg v. Hayes or to recognize a privilege under
federal court rules.
In Branzburg, the court declined to recognize a reporter's right under
the First Amendment to remain silent about sources before a grand jury.
Branzburg considerably ties the hands of any lower court. The Supreme
Court, by contrast, is free to rethink the question. The alarming proliferation
of civil and criminal cases in which reporters are being forced to reveal
their sources begs for a fresh look.
The more promising route may be legislative. Nearly all states have statutes
or case law that, to some degree, protects a reporter's ability to keep
sources confidential. The federal government is a big exception. Legislation
was recently introduced to limit subpoenas of reporters and to prevent
the compelled disclosure of confidential sources.
This would hardly be a dramatic step: Federal courts already refrain from
forcing psychotherapists to disclose conversations with patients, priests
from violating the silence of the confessional and attorneys from giving
up client secrets. The rationale is that securing certain professional
communications warrants giving up certain evidence. The function that
journalists carry out in bringing important information to the public
and enabling democratic debate merits a similar shield.
—This editorial appeared
in the Washington Post
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