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Appeals court hears case over sources in CIA operative disclosure

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  1. Protecting Sources and Materials

    News Media Update         WASHINGTON, D.C.         Confidentiality/Privilege    

Appeals court hears case over sources in CIA operative disclosure

  • The U.S. Court of Appeals in Washington, D.C., heard oral arguments Wednesday in the case of reporters subpoenaed to disclose their confidential sources in the Plame leak investigation.

Dec. 8, 2004 — Both the First Amendment and common law protect journalists’ confidential relationships with their sources, media lawyer Floyd Abrams told the U.S. Court of Appeals in Washington, D.C., Wednesday during spirited oral arguments.

Despite the 1972 Supreme Court ruling in Branzburg v. Hayes that reporters are not shielded from revealing their sources to a grand jury, Abrams told a three-judge panel: “We’ve had a lot of jurisprudence that changes Branzburg.

At issue is whether Judith Miller of The New York Times and Matthew Cooper of Time magazine can legally defend their refusal to reveal confidential sources in the grand jury investigation into who leaked the identity of undercover CIA operative Valerie Plame to columnist Robert Novak and other journalists. U.S. District Judge Thomas Hogan found Miller and Cooper in contempt for refusing to reveal their sources.

In the 32 years since Branzburg was decided, a number of federal appeals courts have ruled that some privilege from revealing confidential sources exists.

Congress in 1975 enacted Federal Rule of Evidence 501, which directs the federal courts to develop privileges not to testify from the common law “in light of reason and experience.” In 1996, the U.S. Supreme Court ruled in Jaffee v. Redmond that a privilege for psychotherapists existed in the federal courts because such a privilege had become widely recognized by the states.

Abrams argued that the court should now recognize a reporters’ privilege as well, because 49 states and Washington, D.C., have such a privilege. Only 15 states did when Branzburg was decided.

But Chicago U.S. Attorney James P. Fleissner, arguing the case for the government, said Miller and Cooper’s case is indistinguishable from Branzburg .

“I disagree that Rule 501 changed circumstances in any significant way,” he said.

Judge David B. Tatel, who heard the case along with Judge David B. Sentelle and Judge Karen L. Henderson, said, “It seems to me the argument for a qualified privilege is more powerful here than in Jaffee .”

Sentelle seemed concerned that a reporters’ privilege could be invoked by too many people. “You want us to come out with a privilege from grand jury testimony for anybody who wants to take three minutes to set up a blog?” he asked Abrams.

Abrams replied that the privilege should be available based on what a person does, not who they work for. “They ought to get it because they disseminate information to the public,” he said after the 75-minute hearing, noting that some bloggers have audiences in the tens of thousands.

Outside the courthouse, Miller commented, “The central issue for me as a reporter is still the public’s right to know.” Cooper added that, particularly when the United States is trying to secure democracy abroad, “No American reporter should have to go to jail for doing his or her job.”

Both Miller and Cooper said they would to go to jail rather than disclose their confidential sources.

“We are prepared to do what we need to do to protect our sources,” Cooper said.

(In re Grand Jury Subpoenas; Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York) GP

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