Published June 27, 2005
WASHINGTON – The Supreme Court (search) rejected appeals Monday from two journalists who have refused to testify before a grand jury about the leak of an undercover CIA officer's identity.
The cases asked the court to revisit an issue that it last dealt with more than 30 years ago — whether reporters can be jailed or fined for refusing to identify their sources.
The justices' intervention had been sought by 34 states and many news groups, all arguing that confidentiality is important in news gathering.
"Important information will be lost to the public if journalists cannot reliably promise anonymity to sources," news organizations including The Association Press told justices in court papers.
Time magazine's Matthew Cooper (search) and The New York Times' Judith Miller (search), who filed the appeals, face up to 18 months in jail for refusing to reveal sources as part of an investigation into who divulged the name of CIA officer Valerie Plame (search).
The ruling effectively ends Cooper and Miller's appeal on free-speech grounds, although Time said in a statement it would seek a new hearing in federal court on other grounds.
Plame's name was first made public in 2003 by columnist Robert Novak (search), who cited unidentified senior Bush administration officials for the information. The column appeared after Plame's husband, former Ambassador Joseph Wilson (search), wrote a newspaper opinion piece criticizing the Bush administration's claim that Iraq sought uranium in Niger.
Disclosure of an undercover intelligence officer's identity can be a federal crime and a government investigation is in its second year. No charges have been brought.
U.S. Attorney Patrick Fitzgerald (search) of Chicago, the special counsel handling the probe, told justices that the only unfinished business is testimony from Cooper and Miller.
Cooper reported on Plame, while Miller gathered material for an article about the intelligence officer but never wrote a story.
A federal judge held the reporters in contempt last fall, and an appeals court rejected their argument that the First Amendment (search) shielded them from revealing their sources in the federal criminal proceeding.
Every state but Wyoming recognizes reporters' rights to protect their confidential sources of information, justices were told in a brief filed on behalf of 34 states, and without those privileges "reporters in those states would find their newsgathering abilities compromised, and citizens would find themselves far less able to make informed political, social and economic choices."
But Fitzgerald said in his own filing that the federal government is different. "Local jurisdictions do not have responsibility for investigating crimes implicating national security, and reason and experience strongly counsel against adoption of an absolute reporter's privilege in the federal courts," he said.
"That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today's decision even more disappointing," said Arthur O. Sulzberger Jr., publisher of The New York Times.
In the last journalist source case at the Supreme, the 1972 Branzburg v. Hayes, a divided court ruled against Louisville, Ky., reporter who had written a story about drug trafficking and was called to testify about it. Justices said that requiring journalists to reveal information to grand juries served a "compelling" state interest and did not violate the First Amendment.
That decision has been interpreted differently and clarification is needed because dozens of reporters around the country have been subpoenaed over the past two years, said Washington lawyer Miguel Estrada (search), representing Time magazine.
Still pending before a federal appeals court is a contempt ruling against five journalists — including Associated Press reporter H. Josef Hebert — who have refused to identify their sources for stories on Wen Ho Lee (search), the nuclear scientist whose career was cut short when his name surfaced as an espionage suspect.
Lee is suing the government for leaking his name to the news media during a political frenzy late in the Clinton administration when Republicans accused the White House of ignoring China's alleged theft of U.S. nuclear secrets. The other journalists include Los Angeles Times reporter Robert Drogin, James Risen and Jeff Gerth of The New York Times, and Pierre Thomas, formerly of CNN and now of ABC.
The cases are Miller v. United States, 04-1507, and Cooper v. United States, 04-1508.