NEWS MEDIA UPDATE · U.S. SUPREME COURT · Confidentiality/Privilege · June 27, 2005
Reporters’ appeal in CIA leak case rejected by high court
June 27, 2005 · The U.S. Supreme Court today refused to hear the appeal of reporters Judith Miller of The New York Times and Matthew Cooper of Time magazine, who are under court order to reveal their confidential sources to a grand jury investigating the disclosure of CIA operative Valerie Plame’s identity. With their appeals exhausted, it appears likely that they will be sent to prison for as long as 18 months if they continue to refuse to testify, although they plan to argue that the changed nature of the investigation makes their testimony less necessary. Both Miller and Cooper have previously said they will go to jail rather than break their promises of confidentiality.
Following its usual practice, the court rejected the appeal without comment. In order for the court to hear the case, at least four justices would have needed to vote to grant review. Justice Breyer took no part in the decision, for reasons that were not disclosed.
“I am extremely disappointed,” Miller said in a statement first reported by the Times. “Journalists simply cannot do their jobs without being able to commit to sources that they won’t be identified. Such protection is critical to the free flow of information in a democracy.”
Arthur Sulzberger Jr., the publisher of The New York Times, told his paper: “It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the C.I.A. agent, Judy finds herself facing a prison sentence.”
Cooper and Miller were held in contempt of court by U.S. District Judge Thomas Hogan in October 2004 and ordered imprisoned and fined $1,000 a day until they agreed to testify about who leaked Plame’s identity to reporters.
The case now goes back before Hogan. In a statement, Cooper and Time said that they will ask Hogan to reassess their claim of privilege due to changed circumstances in the investigation.
“Statements from the Special Counsel’s office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court. There is reason to believe, for example, that the Special Counsel may have determined that disclosure of Valerie Plame’s identity to Robert Novak did not violate the Intelligence Identities Protection Act. If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on Time.com, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter’s confidential sources under federal common law,” Time said.
The reporters were subpoenaed by Special Prosecutor Patrick J. Fitzgerald, appointed by the Department of Justice to investigate the leak. Plame’s husband, former-ambassador Joseph Wilson, claims that her identity was revealed in order to retaliate against him for publicly criticizing the Bush administration’s assertion that Iraq had been attempting to buy uranium from Niger to make nuclear weapons.
Plame’s identity was first published by columnist Robert Novak in July 2003. Novak has refused to say whether he has been subpoenaed. A number of other reporters who subsequently covered the story, including Cooper, were subpoenaed to testify in the investigation and agreed to testify on a limited basis about their conversations with vice presidential aide Lewis “Scooter” Libby at Libby’s request.
Miller, who never wrote about Plame but is believed to have gathered information for a story, refused to testify at all. After receiving a broader subpoena, Cooper also refused to testify further. The U.S. Court of Appeals in Washington, D.C., refused in February to reverse Hogan’s order finding them in contempt of court. The sentences were stayed while the cases were being appealed.
The Supreme Court’s decision not to hear the case leaves considerable confusion among the federal courts about extent of reporters’ ability to refuse to testify about their confidential sources. Following the U.S. Supreme Court’s 1972 split decision in Branzburg v. Hayes that reporters have no privilege to refuse to testify before a grand jury, most federal courts have held that reporters do have a First Amendment privilege not to testify in other proceedings. But the scope of that privilege varies widely from jurisdiction to jurisdiction, and a few federal courts have refused to recognize any privilege.
Courts and legislatures in 49 states — every state that has ruled on the issue — also recognize a reporter’s privilege not to testify. Miller and Cooper, who were joined by numerous news media groups, including The Reporters Committee for Freedom of the Press, and the attorneys general of 34 states, argued that this widespread acceptance by the states and changes in the Federal Rules of Evidence compel the recognition of a reporter’s privilege in the federal courts under the common law.
(Miller v. U.S., Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York City; Miguel Estrada, Gibson, Dunn & Crutcher, Los Angeles) — GP