Reporters Committee disappointed by denial of review in Miller, Cooper appeals

The Reporters Committee for Freedom of the Press is troubled by the U.S. Supreme Court’s decision not to hear the appeal of reporters Judith Miller of The New York Times and Matthew Cooper of Time magazine, who have been ordered to reveal their confidential sources to a grand jury investigating the disclosure of CIA operative Valerie Plame’s identity.

The court’s decision not to hear the case leaves the status of the reporter’s privilege in the federal courts in chaos and means that two reporters who broke no law in speaking with their confidential sources will be sentenced to up to 18 months in prison if they do not testify. Both Miller and Cooper have previously said they will go to jail rather than break their promises of confidentiality.

“As time goes on, it has become increasingly clear that the law may not have been broken when Ms. Plame’s identity was revealed,” said Reporters Committee Executive Director Lucy A. Dalglish. “It will be a travesty of justice if two journalists go to jail for keeping their promises by refusing to identify sources in a criminal case where there was no violation of the law.”

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. Since the Branzburg decision, changes in the Federal Rules of Evidence and the recognition of the reporter’s privilege by courts and legislatures in 49 states — every state that has ruled on the issue — compel the recognition of a reporter’s privilege under the common law.

Special Prosecutor Patrick J. Fitzgerald subpoenaed Miller and Cooper to testify in the grand jury investigation into who leaked the identity of undercover CIA operative Valerie Plame to reporters. Miller and Cooper refused to reveal their sources and were held in contempt of court. On Feb 15, the U.S. Court of Appeals in Washington, D.C., ruled that Miller and Cooper had no privilege to refuse to testify before the grand jury, and they asked the U.S. Supreme Court to review their case.

Because of the split in the federal and state courts, the decision not to hear the case leaves reporters with little guidance on whether or not they can assure sources that promises of confidentiality will be upheld in court. It also provides no guidance to the federal courts reviewing the reporter’s privilege in at least four other pending cases.

“We hope the high court’s refusal to take the Miller/Cooper case results in greater interest in passage of a federal shield law that has been introduced in Congress,” Dalglish said.

For a complete review of the current subpoena crisis, see The Reporters Committee’s Special Report on Reporters and Federal Subpoenas at https://www.rcfp.org/shields_and_subpoenas.html#plame