Experts Discuss Journalists’ Right to Reporter

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• JEFFREY BROWN:

  For journalists watching a busy day of decisions at the Supreme Court Monday, a non-decision may have been the biggest news of all: The court decided not to hear the case of two reporters who face jail time for refusing to reveal their confidential sources.

  The case involves the nearly two-year criminal probe into a possibly illegal exposure of a covert CIA operative named Valerie Plame. Plame's husband, former Ambassador Joseph Wilson, was asked in 2002 by the Bush administration to investigate reports that Saddam Hussein sought uranium in West Africa.

  In July 2003, Wilson publicly disputed White House claims about the subject of his mission and what he found or didn't find. Shortly thereafter, Plame's name surfaced in a column by Robert Novak, alleging she had interceded to send Wilson on the weapons mission.

  In response, Wilson charged that in an effort to intimidate him, White House officials knowingly exposed his wife's identity, which is a federal offense. Robert Novak has steadfastly refused to comment on his central involvement in the case.

  Two other journalists — New York Times reporter Judith Miller, who researched the story, and Time Magazine's Matthew Cooper, who wrote an article — refused to name their confidential sources before a grand jury convened by special prosecutor Patrick Fitzgerald. Lower courts held them in contempt, and Monday the Supreme Court declined to intervene.

  Today, Miller and Cooper were back in federal court. Judge Thomas Hogan told them he'd make a final ruling next Wednesday. The two journalists face up to 18 months in jail for their continued refusal to testify. Outside the courthouse, Matthew Cooper responded to questions concerning the possibility that Time Magazine might hand over documents to the prosecutor.

• MATTHEW COOPER:

  On balance, I think I'd prefer they not turn them over the documents, but Time can make that decision for itself, and I think it's, you know, an honorable one, whatever they decide.

• JEFFREY BROWN:

  Just yesterday, another case, this one involving former nuclear weapons scientist Wen Ho Lee, also went against a journalist's right to protect sources. In 2000, after a lengthy and very public probe, Lee was exonerated on espionage charges.

  He then sued the government for leaking damaging information about his case and demanded that reporters from several news organizations testify and divulge the names of government sources who'd given them information. Four reporters refused to testify; a federal judge held them in contempt and yesterday, a federal appeals court affirmed that decision. The reporters face fines of $500 a day.

• JEFFREY BROWN:

  We look at some of the legal and journalistic issues now with: Geoffrey Stone, professor of constitutional law at the University of Chicago and Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a non- profit organization that provides legal advice to journalists. Welcome to both of you.

  Starting with you, Professor Stone, in the Plame case, two journalists — two journalists say they should not have to testify. Why do you think the courts are right to tell them that they should?

• GEOFFREY STONE:

  Well, there's two reasons. First is that under existing law, there is no federal statute that authorizes a journalist-source privilege. And at the same time, the Supreme Court, when it has reviewed this matter in 1972, adopted at best a very limited version of a First Amendment privilege. So under existing law, the federal courts were not in a position, in my view, to have recognized this privilege.

  Second, more importantly, as a matter of good public policy, it seems to me that the reporters in this context should not have a privilege even though I strongly support a broad federal statute that would recognize such a privilege. The reason that I think such a statute would not apply here is that in the usual circumstance, the source is revealing information to a reporter where that information is of considerable public value, and the reason for creating a privilege is to encourage sources to be willing to make those disclosures.

  In the Plame case, we have a relatively unusual circumstance where the so-called source is essentially using the press in an effort to commit a federal crime by disclosing the identity of a secret CIA operative. That is not the type of disclosure that the law is designed to encourage. Therefore, the reporters in this case should never have even entertained the idea of promising confidentiality and no version of a reporter-source privilege in my view or my judgment would cover the particulars of this situation.

• JEFFREY BROWN:

  Lucy Dalglish, how do you see the Plame case? Can you distinguish it from other cases?

• LUCY DALGLISH:

  Oh, you know, I really only distinguish these cases in terms of are they in federal court or are they in state court? Are they in civil court or criminal court? I think that a journalist is in a very poor position at the beginning of — when they're reporting a story. For a journalist to make the determination on the spot, "Hmmm, I think the person who's talking to me about this story is breaking the law, I guess I shouldn't promise them confidentiality."

  I think it's unrealistic to expect that a journalist can do that. I think the reporters in this case have behaved very honorably. I recognize that journalists view this to be an ethical issue. They view it to be black and white. You either keep your source — your promises to your sources, or you don't. And Professor Stone is absolutely right: The status of the law in this case is convoluted and very difficult for anyone to get their arms around.

• JEFFREY BROWN:

  Well, before I ask you both about the status of the Supreme Court case that people hearken back to, Professor Stone, Judge Hogan today at the hearing, he said that this is a clash of competing values in our Constitution. I think that might be a helpful way for people to understand what's going on here. Define that for us, would you?

• GEOFFREY STONE:

  Sure. Well, on the one hand, you have the legitimate interest of the state in a criminal prosecution, or the individual, if it's a defendant in a criminal prosecution seeking information from a reporter, or, as in the Wen Ho Lee case, civil action, where an individual is seeking the information, wanting to gain access to data that may be critical for a proper resolution of a criminal or civil matter.

  And on the other hand, there is the desire in our society to enable the public to be fully and broadly informed about all matters of public importance. And one of the ways in which we can facilitate that process is by enabling sources who would be reluctant to disclose information to reporters if they knew their identities would be revealed to have the protection of a privilege so that if they are lawfully disclosing information to reporters, that they know that the reporter will be able to shield them in the case of an investigation.

  I do want to add, by the way, that there is no problem for reporters in dealing with the issue of whether the disclosure is lawful or unlawful. Many professionals have much broader privileges than those that have thus far been recognized for reporters — attorneys and doctors, for example — and it's always understood that any assurance of confidentiality is subject to what the law recognizes. And in that sense, when a reporter offers to a source a guarantee of confidentiality, either explicitly or implicitly, it should be understood that that is to the extent that the law approves such a privilege. If it doesn't approve the privilege, the reporter has no right to make the promise and has no right to refuse to answer.

• JEFFREY BROWN:

  I guess you don't see it as easy to distinguish when you're out in the field as a reporter.

• LUCY DALGLISH:

  No, when you're working in the field —

• GEOFFREY STONE:

  No, I think it's very difficult. It's very difficult.

• JEFFREY BROWN:

  I'm sorry. Let me ask Ms. Dalglish.

• LUCY DALGLISH:

  When you're dealing with making promises to your sources, what this all boils down to is the fact that if you develop a reputation or — a bona fide reputation of revealing confidential information that you got from a confidential source, the bottom line is that information is going to dry up and you're effectively not going to be able to do your job anymore. And that's where journalists are coming. That's one of the reasons they really work very hard to protect their sources.

  The other one is to really maintain their independence. They want to make sure that the public understands that they are not operating as an investigative arm of the government or an investigative arm of the plaintiff or the investigative arm of some defense case in a civil matter, and that they are independently collecting the information. These are very, very difficult circumstances. These are very difficult cases, and I think if we had one or two of them every five years or so, it would not concern me so much. I might say, on the balance of, you know, justice here, maybe every once in a while a reporter should cooperate.

  But the problem is, right now we have upwards of two dozen of these cases in the federal courts in both civil and criminal cases. It's getting out of control and journalists, I know from talking to Washington bureau chiefs, that they're losing stories because sources, particularly here in Washington, in national security cases, are saying, "I can't talk to you. You're not going to be able to protect me."

• JEFFREY BROWN:

  Well, that's what I wanted to ask you. So you do already see a chilling effect from these cases?

• LUCY DALGLISH:

  Oh, absolutely. In talking to a number of bureau chiefs who've been working on sensitive case stories about the war on terror, about just general political and national security stories here in D.C., there are stories that are drying up out there because even though these journalists are maintaining a track record of not divulging their confidential sources, the sources are saying, "Well, I don't know, a judge is just going to order to you reveal my identity, and I just can't cooperate, sorry." And it's the public that loses out in situations like that.

• JEFFREY BROWN:

  Professor Stone, does that trouble you, this chilling effect?

• GEOFFREY STONE:

  If there is a chilling effect, it troubles me, but I think the chilling effect exists largely because the press has overreached in these cases. These are situations where in fact the leakers are presumably committing a criminal offense. That is a tiny fraction of situations in which a reporter-source privilege might be applicable.

  By far the most common situation is that where a staff member in Congress wants to call a reporter and to reveal that a congressman has taken a bribe or an employee for a corporation wants to disclose to a reporter that the corporation is doing something unsafe in its manufactures. Those are not instances where the leaker is committing a criminal offense, and there should absolutely be a privilege in those circumstances.

  What we're talking about here is a very tiny class of cases where the leak itself is criminal, and in those cases, there is not a need for a privilege. And, indeed, reporters do not need that privilege. What they need to do is stop over claiming, to mislead people as to what they're allowed to do.

• JEFFREY BROWN:

  Over claiming? Overreaching?

• LUCY DALGLISH:

  I don't think they're over claiming –

• GEOFFREY STONE:

  Over claiming.

• LUCY DALGLISH:

  — or overreaching. I think — I would agree that journalists in the last ten years or so have gotten a little bit sloppy and are promising confidentiality too often.

• JEFFREY BROWN:

  This is something we hear about in other contexts, of course.

• LUCY DALGLISH:

  In other contexts.

• JEFFREY BROWN:

  So do you see this fitting into that broader questioning of the media generally now?

• LUCY DALGLISH:

  Well, you know, it's interesting, the First Amendment Center, the Freedom Forum First Amendment Center, has done a study the last couple of years, and they've discovered that in a survey of the public, 69-72 percent of the public over the last couple of years believe that journalists should be able to protect their sources.

  So this is an accepted practice as far as the public is concerned, and, you know, I think the public supports journalists. And if you were to say to them, "Well, you can protect your source, can't you?" And members of the public just assume that they can. And I think we're doing a disservice to journalists these days if, as a lawyer, I don't make it clear to them, every time you promise confidentiality to a source, you're taking a risk, and just make sure that both you and your source know what those risks are.

  And I hope that media lawyers across the country are sitting down in the newsrooms and having those conversations with reporters.

• JEFFREY BROWN:

  Professor Stone, we just have a moment here, but do you expect to see more clashes between journalism and the legal system?

• GEOFFREY STONE:

  I think I really do believe that much of the problem here has to do with the overreaching. I don't know about the dozens of cases that Lucy refers to, but certainly in these two most visible cases, the Plame case and the Wen Ho Lee case, we're talking about circumstances where the leak is a criminal offense.

  And I think that's a very small percentage of the situations, and that is a context that goes far beyond what the ordinary reporter-source privilege recognizes. I do think that there should be a statute. I do think there should be a very bold federal statute, to protect reporters and sources, but it should not apply in circumstances where the leak itself is unlawful.

• JEFFREY BROWN:

  All right, Geoffrey Stone and Lucy Dalglish, thank you both very much.

• LUCY DALGLISH:

  Thank you.

• GEOFFREY STONE:

  Thank you.