NEW YORK – With headline-making cases about botched reports, phony stories and flat-out errors, the last few years have not been good ones for journalists. Come Monday, for two reporters in particular, things could get much worse.
The justices of the Supreme Court on Thursday debated whether to take on the cases of Matt Cooper (search), a Time magazine reporter, and Judith Miller (search), a reporter at the New York Times. Both have refused to comply with federal subpoenas over the outing of former CIA official Valerie Plame's (search) identity.
The decision whether to grant certiorari, or take the appeal, is expected to be announced on Monday during the court's final session of the 2004 term. If the justices decline to intervene, both face up to 19 months behind bars.
The prospect of two journalists being hauled off to jail to protect their sources has the media largely up in arms. Thirty-six journalist groups and news organizations, including FOX News Channel, which owns FOXNews.com, filed a friend-of-the-court brief on behalf of Cooper and Miller asking the court to hear their case.
Somewhat surprisingly, 34 states and the District of Columbia also filed briefs on behalf of the reporters, a move observers believe may compel the justices to tackle a subject for which they have never had much love.
"I find it an extraordinary indication of commitment by those states to a position that might not be obvious. The fact that they have joined in should be persuasive," said Robert M. O'Neil, a First Amendment expert at the University of Virginia School of Law.
Many reporters and constitutional law scholars are eager for the court to clear up what is seen as a murky set of rules governing protection for journalists on the federal level.
The court's last visit on the issue, 1972's Branzburg v. Hayes, gave journalists no immunity from a grand jury subpoena, but the concurring opinion of Justice Lewis F. Powell (search) arguably opened the door to legislative protections in 49 states and the District of Columbia.
Wrote Powell: "Certainly, we do not hold ... that state and federal authorities are free to 'annex' the news media as 'an investigative arm of government.'
"The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."
The leak scandal began nearly two years ago, when Plame's husband, former ambassador Joseph Wilson (search), wrote an editorial published in The New York Times that criticized President Bush's claim that Iraq had attempted to purchase yellowcake uranium in Niger.
A week later, syndicated columnist Robert Novak (search) sought to defang Wilson's editorial, and in doing so he disclosed that Wilson's wife was an operative at the CIA.
Several high-profile opponents of the war accused Novak of being the White House's instrument of revenge on Wilson. Two months later, the CIA asked the Justice Department to investigate whether Novak's sources had broken the law by revealing Plame's identity.
White House officials and journalists alike, including Karl Rove and NBC's Tim Russert, have been interviewed in the probe. Cooper and Miller, to whom the leaker or leakers also spoke, were held in contempt of court for refusing to answer a grand jury's questions.
To be clear, the two reporters are not the target of the government's investigation. Special prosecutor Patrick J. Fitzgerald (search) has been tasked with finding and possibly prosecuting the government official or officials who leaked Plame's identity to Novak, Cooper and Miller.
But to Cooper and Miller, compromising sources in order to protect themselves is out of the question. Moreover, Cooper at least has wondered aloud to one industry publication how much the government really needs his testimony.
Novak's silence on the issue has fueled speculation that he cut some sort of deal with the prosecutor. And if Novak has indeed testified about his source, as many believe, it begs the question of why the Justice Department would still want to talk to Cooper and Miller, who never even wrote about Plame.
"I don't think there's any evidence a law was broken here," said Lucy Dalglish, executive director of the Reporter's Committee for Freedom of the Press.
"Novak testified, and the information he provided gave no indication the law was broken," Dalglish, a former reporter and media lawyer, hypothesized. "In other words, his sources were not in a position to break the law."
The law in question, the 1982 Intelligence Identities Protection Act, complicates Cooper and Miller's cases. While First Amendment attorney Floyd Abrams (search) has argued on their behalf, some legal observers say a stronger case can be made by looking at the law being used to threaten them with jail.
Even the drafters of the law, former Senate committee attorneys Victoria Toensing (search) and Bruce Sanford (search), say the IIPA does not apply to this case. In a Washington Post editorial last January, they argued that Plame had been assigned to a desk job at CIA headquarters in Langley, Va., well before Novak's disclosure, indicating she was far from deep cover. Further digging by other news organizations leads to the conclusion that neither Plame nor her employer took pains to conceal her identity.
And the CIA's own lag in taking action — weeks passed before the agency expressed any displeasure over Plame's outing — may indicate that her identity was at best loosely tied to national security, they added.
Even those who believe Cooper and Miller should be jailed for refusing to comply with the grand jury concede that the sources who leaked Plame's identity did not break the law.
"I'm pretty persuaded there is no crime here," said constitutional law professor and syndicated talk radio host Hugh Hewitt.
"But that doesn't answer the question of the necessity of grand jury compliance," he added. "I don’t know what it is that makes journalists better than average Americans ... if a journalist has information that would allow the government to stop criminal wrongdoing, they ought to come up with it."
One media law expert said the lack of a crime may actually boost the reporters' First Amendment argument.
"This is actually a better case for First Amendment [protections] than it appears, if what's happening here is overzealous prosecution of someone who at the end of the day is probably not going to be [convicted] or will get off with a slap on the wrist," Cameron Stracher, co-director of the Law and Journalism program at New York Law School, said.
"This is not a case in which a reporter has witnessed a murder ... why would they need to arguably threaten First Amendment freedoms?" Stracher asked.
"Why" is a very good question, many in the media say. Cooper and Miller are just two of about a dozen journalists across the country facing jail time for protecting sources. Jim Taricani, a TV reporter in Rhode Island, was sentenced to six months of home confinement for refusing to give up a source in a corruption probe that brought down the mayor of Providence. A heart condition was the only thing that kept Taricani out of jail, the sentencing judge said.
Most states have some sort of balancing test on the books, and many in the media want the Supreme Court to finally lay down some parameters.
"The law is very confused on this, the courts are all over the place," Stracher said. "This is obviously a very important issue with important repercussions."
He and others agreed that despite the current backlash against anonymous sources following the Newsweek-Koran flap, it is critical that reporters be aggressive about getting as much information on issues like intelligence and the Iraq war to the public, even if they must rely on anonymous government officials to do so. And, as Cooper and Miller argue, their use of such information must be protected from government interference.
"If the public allows journalists to be stomped on by the government, they will live to regret it," warned Norman Solomon, a media columnist and author of "War Made Easy: How Presidents and Pundits Keep Spinning Us to Death."
"Everybody cares about something that will be negatively affected if freedom of the press is curtailed — environmental protection, the threat of pollution to the health of kids in the neighborhood," he said. "Journalists need to be able to gain information from confidential sources" to serve the public.
Irwin Gratz, president of the Society for Professional Journalists, argued that Branzburg left reporters at the mercy of the government and that the Supreme Court should correct that ruling.
"The more we are dragged into court, the less able we are able to do our jobs. It harms the public if journalists can't do their jobs without fear of prosecution," he said.
But some media advocates detected grandstanding among Cooper and Miller's supporters.
"It's a poor case to apply to this very noble principle," said Peter Hart of Fairness and Accuracy in Reporting.
FAIR is among the minority of journalism groups urging Cooper and Miller to cooperate with prosecutors. The reason, Hart said, is because in the rush to defend their colleagues, journalists are missing key details.
"The parameters of this case seem to be government officials leaked information to the media in an attempt to harm critics of the government," Hart said. "That is a much different thing than a traditional whistleblower — this is more a government plant than a leak."
The fact that their case is a far cry from Watergate (search) has some observers worried that the Supreme Court's consideration of Cooper and Miller's case may do little to clarify their First Amendment protections.
"In a situation where reporters are being used to go after government critics, the obligation should be on the reporters to expose that as a form of wrongdoing and to reveal who the source of that information was," Hart said. "When the purpose of anonymous sourcing is to engage in unethical and illegal behavior, reporters should think about whether they should be protecting those sources."
Even if the court takes up the case and doesn't see First Amendment grounds there, O'Neil said the justices are free to tackle the protections issue regardless.
"One thing about the Supreme Court is they're entirely free to raise an issue on their own and occasionally do," he said, recalling his experience as a clerk to Justice William Brennan (search) in 1962. "There could be a majority reaching completely different decisions — one on constitutional grounds and the other on statutory grounds."
In other words, the court could address the IIPA's applicability as well as the First Amendment protection question.
Hart agreed that even though Cooper and Miller may prove poor press freedoms test cases, it is important that the court eventually clarify the law.
"We still have to figure out what measure of legal protections can be afforded journalists on the federal level. For reporters, you cannot argue all information is privileged 'just because it is' — we need a balancing test," he said.