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Federal appeals court upholds reporter subpoenas

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  1. Protecting Sources and Materials

    News Media Update         D.C. CIRCUIT         Confidentiality/Privilege         Feb. 15, 2005    

Federal appeals court upholds reporter subpoenas

  • The U.S. Court of Appeals in Washington, D.C., broadly rejected a reporter’s privilege to protect confidential sources from grand jury subpoenas in the Plame leak investigation.

Feb. 15, 2005 — Judith Miller of The New York Times and Matthew Cooper of Time magazine must testify about their confidential sources before a federal grand jury investigating who leaked undercover CIA operative Valerie Plame’s identity to reporters, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., unanimously ruled this morning.

The ruling relied heavily on the 1972 U.S. Supreme Court decision in Branzburg v. Hayes.

“Unquestionably, the Supreme Court decided in Branzburg that there is no First Amendment privilege protecting journalists from appearing before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source,” Judge David B. Sentelle wrote. “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter.”

Since the Branzburg decision, most federal courts have ruled that some reporter’s privilege to protect sources exists, based primarily on the concurring opinion of Justice Lewis F. Powell. Powell, whose vote was necessary to form a majority in the 5-4 decision, wrote separately that a privilege would exist if a reporter were called to testify about information that is “remote and tenuous” to an investigation or where there is no legitimate need by law enforcement.

Sentelle wrote that such a circumstance offers no different protection than that afforded to any citizen called before a grand jury, and that “there is no reason to believe that Justice Powell intended to elevate the journalistic class above the rest.”

The appellate court also unanimously held that Department of Justice guidelines governing when and how journalists may be subpoenaed by federal prosecutors are not binding or enforceable in court. The court ruled that Miller and Cooper’s due process rights were not violated when U.S. District Judge Thomas Hogan held them in contempt based on secret evidence submitted to the grand jury but not available to them.

The three Court of Appeals judges differed significantly on the existence of a reporter’s privilege based in the common law instead of on the First Amendment. After Branzburg, Congress changed the Federal Rules of Evidence to allow federal courts to develop common law privileges based on “reason and experience,” and in 1996 the Supreme Court created a psychotherapists privilege in Jaffee v. Redmond because such a privilege had been uniformly recognized by the states.

Thirty-one states and the District of Columbia have “shield laws” protecting reporters from revealing their sources, and of the remaining states, all but one have recognized some reporter’s privilege in judicial decisions. At the time of Branzburg, only 17 states had a shield law.

That shift, Judge Karen L. Henderson wrote in a concurring opinion, “could provide a basis for rethinking Branzburg,” but “that is something only the Supreme Court can do.”

Displaying significant concern that a common law privilege could be invoked by anyone claiming to be a “blogger,” Sentelle wrote a separate concurring opinion declining to adopt such a privilege, and wrote that only the U.S. Supreme Court is empowered to do so.

Judge David S. Tatel wrote a concurring opinion urging the adoption of a qualified privilege based on the changes to the federal evidence rules and Jaffee. “I find support for the privilege at least as strong for journalists as for psychotherapists,” he wrote.

Henderson wrote that she did not believe the court needed to rule on the existence of a common law privilege.

All three agreed that if qualified common law privilege did exist, it had been overcome in this case by Special Prosecutor Patrick J. Fitzgerald. About nine pages of Tatel’s opinion were redacted and dealt with Fitzgerald’s burden of showing that the information he seeks from Cooper and Miller is “critical and unobtainable from any other source.” The court concluded he had met that burden.

Both The New York Times and Time magazine said in statements that the decision will be appealed. The journalists can either petition the full Court of Appeals or the U.S. Supreme Court to consider the case.

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

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