A threat to the press and the public
A Times EditorialPublished June 29, 2005
The case of two veteran journalists who may find themselves in jail any day now for refusing to divulge their confidential sources is a grave threat to the press's ability to hold government accountable.
While those of us in the news business find the prospect of Judith Miller of the New York Times and Matthew Cooper of Time magazine spending time in jail on civil contempt charges to be a serious constraint on investigative reporting, the general public also has a big stake in this fight. When the press is intimidated and reporters can no longer guarantee anonymity to sources, the vital role of the press in checking the power of government is seriously harmed.
Despite the urging of attorneys general from 34 states and the District of Columbia, the U.S. Supreme Court on Monday refused to take up the appeal of Miller and Cooper. It was essentially their last legal option. Their case will be heard today by Chief Judge Thomas Hogan of the Federal District Court, who in October held the journalists in contempt for refusing to testify before a grand jury. They are facing up to 18 months in jail.
Miller and Cooper are declining to disclose the names of any government officials they spoke to in pursuing a story on the outing of Valerie Plame, a covert CIA agent. Revealing the name of a clandestine agent can be a crime under federal law. A grand jury is investigating whether a member of the Bush administration revealed Plame's name to journalists as a form of payback.
Plame's husband, Joseph Wilson, a former diplomat, had been dispatched to Africa to investigate claims that Saddam Hussein sought to purchase uranium. Wilson found little merit in the claims and said so in a New York Times op-ed piece.
The real mystery is why Robert Novak, the conservative columnist who published the initial story naming Plame, apparently has nothing to fear from the special prosecutor. Novak has refused to say whether he has cooperated with investigators, but he obviously has the information the prosecutor and grand jury seek. Miller never even published a story about Plame; and the story Cooper wrote followed Novak's revelation and focused on what motivated the leak. Novak's refusal to explain his own conduct or to speak out in defense of his colleagues shows he has little regard for his profession's standards or press freedom.
Protecting the confidentiality of a source is often the only way for the press to effectively operate. People within government or business are typically not willing to lose their careers or livelihoods in exchange for disclosing their employer's misdeeds. They want their identities protected. But if insiders believe journalists could be easily compelled to unmask them, then this vital pipeline would dry up.
When the press is intimidated and reporters can no longer guarantee anonymity to sources, the vital role of the press in checking the power of government is seriously harmed.
By jailing journalists, this nation is giving political cover to repressive regimes in other countries. Already, the governments of Cameroon and Venezuela have pointed to the contempt charges against Miller and Cooper to justify their own actions limiting press freedom.
The First Amendment explicitly guarantees freedom of the press. But the courts have failed to sufficiently recognize that certain privileges should flow from this promise, including giving journalists the freedom to operate without being forced to become another arm of law enforcement.
At least 49 states have rectified this lapse by passing shield laws or through court recognition of special privileges protecting journalists. Unfortunately, the Miller-Cooper case underscores the need for a federal shield law to protect journalists and the public interest.