NEWS MEDIA UPDATE · U.S. SUPREME COURT · Confidentiality/Privilege · June 1, 2005
State AGs back reporters in Plame investigation appeal
June 1, 2005 · The attorneys general of 34 states and Washington, D.C., filed a friend-of-the-court brief with the U.S. Supreme Court last week, urging the court to hear the appeal of Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller and recognize a qualified privilege for journalists to protect their confidential sources.
Noting that 49 states and the District of Columbia provide such protection to journalists in order to ensure the free flow of information to the public, the attorneys general argued that a “federal policy that allows journalists to be imprisoned for engaging in the same conduct that these State privileges encourage and protect . . . undermines both the purpose of the shield laws, and the policy determinations of the state courts and legislatures that adopted them.”
Only Wyoming has not addressed the issue of whether journalists have a privilege to protect confidential sources.
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 have asked the U.S. Supreme Court to review their case.
The states’ brief also argues that conflict among the federal courts of appeal on the existence and scope of a privilege “has undercut the State shield laws just as much as the absence of a federal privilege.
“To be sure, the States’ shield laws and judicially crafted reporter’s privileges vary in scope and exceptions. But all [of the states joining the brief] agree that some form of a reporter’s privilege grounded in common law is appropriate, and the majority of States have adopted a balancing test approach.”
The brief expressed no opinion on whether a qualified privilege would protect Miller and Cooper in the Plame case.
The brief was joined by attorneys general in Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin and the District of Columbia.
If the Supreme Court decides to take the case, the earliest it will be heard will be this fall.
(Miller v. U.S., Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York City; Miguel Estrada, Gibson, Dunn & Crutcher, Los Angeles) — GP