In the weeks following W. Mark Felt’s acknowledgment that he was the Nixon-era Deep Throat, it seems wholly incongruous that six reporters face jail time for declining to abrogate agreements and identify their sources. But actions this week by the U.S. Supreme Court and a federal appeals court have put the news-gathering process in jeopardy.
It is time for Congress to provide protection like that given journalists in 34 states.
Monday, the U.S. Supreme Court refused an appeal from Matthew Cooper of Time magazine and Judith Miller of The New York Times, who have declined to divulge the name of a source to the prosecutor investigating the 2003 “outing” of CIA operative Valerie Plame. The outing was apparent revenge after Plame’s husband criticized President Bush’s going to war in Iraq.
What’s really curious is that Miller hadn’t published anything, and Cooper’s article appeared only after columnist Robert Novak identified Plame in print.
Special prosecutor Patrick Fitzgerald reportedly has determined no crime occurred, but he’s transformed the case to determine if an official lied to investigators. That may be a legitimate inquiry, but Fitzgerald has crossed the line of reason, if not law, by threatening Cooper and Miller.
In the second case, the U.S. Court of Appeals for the D.C. Circuit held yesterday that four journalists could be punished if they refuse to answer questions in a civil lawsuit by scientist Wen Ho Lee.
Lee’s argument is with the government, not with the press. He was the subject of reports regarding the theft of nuclear secrets at the Los Alamos nuclear laboratory. After he was exonerated, Lee filed suit and his attorneys have sought to question journalists about their sources. Courts have given the go-ahead.
“Clearly there’s a reversal of the trend on upholding reporters’ privilege,” said Denver First Amendment attorney Tom Kelley. Federal courts are split on the issue. The high court’s denial of review may be “simply a reluctance to take on a constitutional case when a legislative solution [a federal shield law] is in the works,” Kelley said.
“It is important that we ensure reporters certain rights and abilities to seek sources and report appropriate information without fear of intimidation or imprisonment,” says Sen. Richard Lugar, R-Ind., the federal shield bill’s top sponsor in the Senate. “This includes the right to refuse to reveal confidential sources.”
A federal shield law would ensure that officials guilty of misdeeds can’t hide in the shadows with impunity.
