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USA16 February 2005

Court of Appeals upholds jail sentence for two journalists who protected their sources

Reporters Without Borders voiced deep concern over the Washington D.C. circuit’s U.S. Court of Appeals’ decision today to uphold a jail sentence for journalists Matthew Cooper of Time magazine and Judith Miller of the New York Times, found in contempt of court for refusing to disclose their sources. Since the two journalists’ lawyer has filed an appeal, enforcement of the ruling has been suspended. Floyd Abrams said he would ask the full appeals court to reverse Tuesday’s ruling.

"With this decision, the challenge raised by the US federal courts against the principle of the confidentiality of sources has reached unprecedented proportions," Reporters Without Borders stated, noting that about 10 journalists are now being prosecuted for protecting their sources. Are we about to reach a point where-in a country founded on the First Amendment-journalists will be imprisoned for having defended one of the basic principles of freedom of the press? the organization asked.

"The right of Americans to be informed will be seriously eroded if these journalists lose this battle being waged against them by the courts," the organization stressed. "The role of the press in providing checks and balances is under fire this time, and the US courts must understand that, if the confidentiality of journalists’ sources is not guaranteed, no one will go to them with sensitive information."

Reiterating its support for the journalists involved, Reporters Without Borders pointed out that they are media professionals, not federal investigators. "By protecting the identity of their sources, they are safeguarding society’s right to monitor public affairs," the organization said.

Source confidentiality is "an inviolable principle," Reporters Without Borders continued. "It is astonishing to see that this principle is better recognized today in 31 States-and in Washington D.C., where it is protected by ’shield laws’-than at the federal level. We urge members of the American Congress to immediately examine these bills on source confidentiality recently introduced to the Senate and House of Representatives by elected Republicans and Democrats.

First amendment threatened

On February 15, the US Court of Appeals for the District of Columbia Circuit rendered its verdict, upholding the prison sentence pronounced against Matthew Cooper, of Time magazine, and Judith Miller, of the New York Times, also tried for "contempt of court."

The two journalists were charged with having refused to disclose their sources to a grand jury set up to investigate the leaks that led to the identity of a CIA agent, Valerie Plame, being revealed in the press.

Since deliberately revealing an intelligence agent’s name can be considered an act of treason, a grand jury investigation led by Special Prosecutor Patrick Fitzgerald was initiated in December 2003 to investigate the source. The White House was suspected of leaking Plame’s name to punish her husband, former ambassador Joseph Wilson, for publicly contradicting claims made by President Bush to justify invading Iraq.

The aim of the jail sentence, pronounced in early October by Federal Judge Thomas F. Hogan, was to force Cooper and Miller to name their sources. Implementation of the ruling has been once again suspended while they appeal to the Supreme Court. Claiming that the First Amendment of the Constitution does not protect source confidentiality, Federal Judge Thomas F. Hogan sentenced Miller and Cooper to prison on October 7 and 13, respectively. In a July 20 ruling regarding Cooper, he referred to a 1972 Supreme Court ruling (Branzburg v. Hayes), which stated that journalists must reveal their sources if required by a judicial investigation.

During the appeals hearing on December 8, their lawyer (invoking jurisprudence and the First Amendment of the Constitution), asked that the court recognize the journalists’ absolute privilege to refuse to reveal their sources. The prosecution, however, based its findings on a ruling in 1972 by the Supreme Court (Branzburg v. Hayes), asked that the journalists be permitted to benefit only from a "qualified privilege," which did not exonerate them from revealing their sources when their testimony might prove essential in criminal cases.

Two other journalists have been cited for questioning about their sources in this case: Tim Russert of NBC and Walter Pincus of the Washington Post. Robert Novak, who was the first to publish Plame’s name, on July 14, 2003, has always refused to say if he has been questioned about his sources.

Miller looked into the Plame case but ended up not writing any story about it. Cooper wrote in Time (July 17, 2003) that government officials had leaked Plame’s identity. He was given an initial jail sentence in early August, which was lifted after his source waived their confidentiality agreement and thereby allowed him to be questioned by the grand jury. But on September 14, he was cited again for questioning with regard to his other sources in this case.

Other pending cases:

Jim Taricani of Rhode Island’s WJAR-TV 10 was sentenced to six months of home confinement on December 9, 2004. He refused to disclose to the court the name of the person who gave him a videotape made in the course of an FBI undercover investigation. He was sentenced despite the fact that the source identified himself on November 26.

Five journalists who had covered the case of Wen Ho Lee-a scientist initially accused of spying and later cleared-were sentenced by a Washington federal judge on August 18 to pay fines of $500 per day until they agree to reveal their sources. In a case which Lee had brought against the Justice and Energy departments, the judge ruled that he had a right to know which official leaked the information that led to the news reports mentioning that he was suspected of spying.

Journalist Vanessa Leggett was jailed for nearly six months in July 2001 for contempt of court after refusing to reveal to a Texas court the content of an interview with the prime suspect in a crime.

"Federal Shield Law" bills under consideration:

On February 2 this year, two members of the House of Representatives, Mike Pence (R-Indiana) and Rick Boucher (D-Virginia) introduced a bill called "The Free Flow of Information Act," which guarantees journalists absolute privilege from being compelled to reveal their confidential sources. The bill provides that courts must exhaust all efforts to obtain the desired information from alternative sources before they may compel a journalist to reveal his or her confidential sources. The act also provides qualified privilege for notes, e-mails, negatives and journalists’ documents to which Federal courts may have access only if such evidence turns out to be essential in criminal cases. Rick Boucher stated that he had realized the necessity of a "Federal Shield Law" to protect the public’s right to know after a series of cases involving source confidentiality were publicized over the last several months. "Many sources are worried that journalists will be unable to keep their promise of confidentiality after spending six months or a year in prison."

Richard Lugar (R-Indiana) introduced a similar bill to the Senate on February 9.



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