Judith Miller of the New York Times and Matthew Cooper of Time magazine asked the Supreme Court to revisit the issue of whether or not reporters can be imprisoned or fined for refusing to identify their anonymous sources.
The case now goes back to federal district court in Washington where U.S. attorney Patrick Fitzgerald of Chicago is expected to ask federal district chief judge Thomas Hogan that the reporters be jailed immediately. Miller and Cooper face up to 18 months in prison, but their lawyers are expected to file briefs on their behalf and propose home confinement or a federal facility other than jail.
“I am extremely disappointed,” Miller said in a statement. “Journalists simply cannot do their jobs without being able to commit to sources that they won’t be identified. Such protection is critical to the free flow of information in a democracy.”
Arthur Sulzberger Jr., the publisher of the New York Times, said, “It is shocking that for doing some routine news-gathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence.”
Last fall, Hogan held the two journalists in contempt for refusing to cooperate in a grand jury investigation in the disclosure of a CIA agent’s identity, which is a federal crime. The judge rejected the argument that the First Amendment shielded reporters from revealing their sources in a federal criminal proceeding.
The CIA agent in question is Valerie Plame whose name was first revealed in 2003 in a column by Robert Novak. Novak’s column appeared after Plame’s husband Joseph Wilson, former ambassador, wrote an opinion piece in the New York Times, criticizing President Bush’s State of the Union speech that said Iraq sought uranium from Niger.
Cooper wrote about the case for Time and Miller reported on the Plame issue, but never wrote an article.
News groups and 34 states asked the Supreme Court to take up the appeal arguing that reporter-source confidentiality is important in news-gathering.
In court papers, several news organizations stated, “Important information will be lost to the public if journalists cannot reliably promise anonymity to sources.”
Wyoming is the only state that does not recognize a reporters’ right to protect their anonymous sources.
However, Fitzgerald disputed that in his own filing.
“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 wrote in his brief to the court.
Fitzgerald also told the justices that the investigation can be concluded after it gets testimony from Miller and Cooper.
The last related journalist source case happened more than 30 years ago in the 1972 case, Branzburg v. Hayes, which ruled against a Louisville, Ky. reporter who refused to identify his sources in a drug trafficking story.