The ruling is not a surprise. The two reporters, Judith Miller of the New York Times and Matthew Cooper of Time magazine, were asking the Circuit Court of Appeals for the District of Columbia to recognize certain rights and protections that the United States Supreme Court has not yet recognized. They were asking a panel of skeptical judges, in other words, to make new law. And intermediate appellate judges rarely like to do that, no matter how sensible a step it would be.
So it's fairly clear now, if it wasn't before, that until the Supreme Court recognizes a constitutional privilege protecting journalists from testifying in grand jury proceedings – or until Congress passes a law that similarly protects reporters – journalists seeking such protection in federal court are going to run into a wall. Neither of those two scenarios seems likely anytime soon, especially with anti-media sentiment swirling around the nation's capital these days. Yet the case and the decision are worth a closer look because they involve important public policy issues touching upon the highest levels of government – even President Bush has been interviewed as part of the investigation – as well as two of the most vital news organizations around.
Miller and Cooper are in big trouble because they have consistently refused to comply with subpoenas requiring them to testify in the federal investigation into the source of the leak last year that "outed" CIA operative Valerie Plame. Miller got into trouble without even publishing a piece; all she did was the research. Cooper did write a piece about the disclosure of Plame's identity, without revealing his sources for it. And for some still unknown reason, Robert Novak, the journalist whose story revealing Plame started it all, isn't on the hook with Cooper and Miller, even though he, too, cited anonymous Bush administration officials. It's an inside-the-Beltway story that has important ramifications for journalists, lawyers, politicians and everyone else across the country.
The reporters made four arguments to the appeals court, none of which prevailed. Miller and Cooper first argued that the First Amendment gives them the constitutional right to protect their sources from grand jury subpoena. Then they argued that journalists have a "privilege" against revealing their sources the way a doctor or lawyer has privileges against testifying. They argued they were denied their due process rights because they weren't given an opportunity to see the federal prosecutor's evidence supporting his claim that their testimony was necessary. And they argued that the prosecutor failed to abide by the Justice Department's own guidelines in seeking information from journalists.
The last two arguments were complete non-starters for the judges and aren't worth spending much time over. Grand jury witnesses typically don't get to see what information federal grand juries are working with. And the Justice Department's guidelines were never intended to create rights for journalists that the courts hadn't already recognized. I suspect that even the venerable Floyd Abrams, the First Amendment guru lawyer who represented the journalists, knew he wouldn't get anywhere with that argument. But each of the three judges spent some time – almost 80 pages worth – evaluating the merits of the first two arguments.
Writing for the court, D.C. Circuit Court Judge David B. Sentelle ruled flatly that journalists have no constitutional right to be free from testifying before a grand jury. His hands are tied, he said, by a Supreme Court decision a generation ago, Branzberg v. Hayes, in which a divided court rejected the idea of a First Amendment privilege. The justices, Sentelle noted, wrote in Branzberg that they could "not seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it."
On this point all of the judges agreed. But when the judges turned to evaluate whether the reporters have a "common law" privilege that could help them in this case they were all over the map. Judge Sentelle ruled that no such privilege exists. Judge David S. Tatel ruled that such a privilege should exist but wouldn't have made a difference in this case. And Judge Karen L. Henderson said she didn't even have to decide the issue because the prosecutor's reason for subpoenaing the two reporters "overcomes any hurdle, however high, a federal common-law reporter's privilege may erect." Both Sentelle and Tatel wrote that Henderson should have considered the privilege issue first before rejecting it.
All of the judges noted that there is no "federal" shield law that would have helped Miller and Cooper, and two of the three declared that they were not ready or willing to recognize one. All three judges also declared that any right the journalists might have had would have been trumped anyway by the prosecutor's showing of a particular need to gain access to their testimony. Balancing the interests in this important case, they declared that the prosecutor's interest in getting to the bottom of the leak story was more important than any interest the reporters could have in protecting their sources. A story about the sources of a leak thus created a case that forces reporters to leak about their sources. It's the kind of irony you might want to write about, unless you wanted to face a subpoena.
Judge Sentelle spent some time going over the many differences between and among state shield laws that sprang up before and after the Branzberg case. He used those examples to explain why there is no clear national mandate for a federal shield law and why its recognition, by judges, would cause enormous logistical problems. I suppose if there is any good news for journalists in the wake of the ruling it comes from the realization that when Branzberg was decided, only 17 states had such laws while 31, plus the District of Columbia, have them now. And, as Judge Tatel pointed out, virtually every state recognizes at least some sort of privilege for journalists. But trends over decades aren't going to keep the two reporters out of jail.
Judge Tatel was the only judge who spent some time contemplating the reasons why federal law recognizes some privileges while continuing to refuse to recognize a First Amendment privilege for reporters. If the Supreme Court could recognize a privilege for psychotherapists after declaring "the mental health of our citizenry is a public good of transcendent importance," Tatel wondered, then "surely press freedom is not less important, given journalism's vital role in our democracy." Federal lawyers already recognize the privilege in their Justice Department rules, he continued, and Congress wanted the judiciary to reevaluate privilege questions from time to time to ensure they are not "frozen" into place.
As I said, neither the ruling itself nor the analysis is a surprise. But what shoots out of the language of the decision is how little energy both Judge Sentelle and Judge Henderson spent considering what journalists do, why what they do is important, why the First Amendment matters, and why the judiciary is uniquely qualified to evaluate these sorts of problems on a case-by-case basis. Only Judge Tatel explored at length the interests of the two people whose lives are about to be turned upside down just for doing their jobs. To read the other two judges, you might think that journalists have the same First Amendment protections as sock puppets.
The harsh ruling, and this case, ought to demonstrate to any reasonable observer that the time has come for a federal shield law; a law that will protect reporters universally across the nation when a prosecutor turns the screws on them during an investigation. I'm not in favor of blanket protection. I think there are some situations in which a reporter ought to be forced to reveal a source. But I also think that the government ought to be required to show an awful lot to gain the right to force a reporter to make that choice: jail or professional doom. If Miller and Cooper go to prison, they certainly will be the biggest losers in the short run. In the long run, we'll all lose by punishing good journalists for trying to get to the bottom of things.