In Washington, D.C., Time magazine's Matthew Cooper faced a year and a half in jail because he refused to identify confidential sources to Patrick Fitzgerald, the special prosecutor trying to find out who exposed undercover CIA operative Valerie Plame. He ultimately agreed to be interviewed by Justice Department officials, after it was determined that the source that most interested Justice, Lewis I. "Scooter" Libby, waived a confidentially agreement.
In Providence, R.I., WJAR-TV investigative reporter Jim Taricani was threatened with jail for not telling government officials the name of the person who gave him a surveillance tape showing a top aide to thenProvidence mayor Vincent "Buddy" Cianci taking a bribe from an informant.
And last month, U.S. District Court judge Thomas Penfield Jackson held reporters from outlets including The New York Times, Associated Press and CNN in contempt for refusing to name sources in their coverage of Wen Ho Lee, a former Los Alamos scientist once suspected of spying for China. Lawyers for Lee claim the information is needed so they can pursue a violation-of-privacy lawsuit against the federal government.
THE QUESTION OF WHETHER REPORTERS have a legal right to protect their confidential sources has been with us for at least a generation. By one estimate, some 18 reporters have spent time behind bars during the past dozen years for refusing to name sources or provide information they had obtained in confidence. Rarely, though, has the issue been as prominent as it is right now. Altogether, according to the Reporters Committee for Freedom of the Press, at least 10 face jail or heavy fines in these three cases. "The number of journalists facing jail in the United States to protect their sources is unprecedented," the organization says.
For those who might have assumed that the issue had long since been settled in favor of the press, these cases demonstrate otherwise. In fact, the matter of whether journalists can protect their confidential sources is one of the great unknowns in media law. For the most part, the answer is no: Reporters have the same requirement to testify before a grand jury and divulge what they know about a crime that's under investigation as any other citizen does. Yet because relying on anonymous sources is sometimes a necessary part of journalism, the courts -- and many state legislatures -- have carved out certain limited protections for the news media. No reporter, though, enjoys absolute, blanket protection.
The Matthew Cooper case received the most attention nationally because the Valerie Plame investigation itself has received so much coverage. In 2002, the CIA sent Plame's husband, former ambassador Joseph Wilson, to Niger in order to investigate claims that Iraq had tried to obtain yellowcake uranium, an ingredient used in the manufacture of nuclear weapons. Wilson reported that there was nothing to the story -- and then, in July 2003, wrote an op-ed piece for The New York Times in which he accused the White House of ignoring his findings. Within days, syndicated columnist Robert Novak reported that "[t]wo senior administration officials" had told him Wilson had received the Niger assignment on the recommendation of his wife -- "Valerie Plame, an agency operative on weapons of mass destruction."
Wilson denied -- and continues to deny -- that his wife was responsible for his Nigerien adventure. Recently, though, the bipartisan report of the Senate Intelligence Committee strongly suggested that Plame did indeed suggest her husband for the assignment. The report also found that Wilson, contrary to his assertions in the Times, came across evidence that an agent of Saddam Hussein may have sought to buy yellowcake from the Nigerien government. But though the report has cast aspersions on Wilson's credibility, it also suggests a motive for whoever leaked Plame's name and CIA status. What better way to belittle Wilson than to cast him as an over-the-hill diplomat who depends on his wife for occasional work?
What brought Matt Cooper to the brink of jail is a federal law -- the Intelligence Identities Protection Act of 1982 -- that makes it a crime for a government official to reveal the identity of a covert government employee such as Plame. Reportedly, the officials who whispered Plame's name in Novak's ear ratted her out to about a half-dozen journalists in total, although only Novak -- an ultraconservative inside player known in political and media circles as "the Prince of Darkness" -- was willing to rush it into print.
In an appearance on CNN's NewsNight, Cooper's lawyer, the noted First Amendment specialist Floyd Abrams, said that "under the First Amendment of the Constitution, reporters have a right not to reveal their sources, because that's a part of newsgathering, without which it would be impossible to find the news which they present to the public." Under prodding from host Aaron Brown, though, Abrams allowed that his position was "unsettled law."
Indeed. In 1972 the Supreme Court heard four cases that to this day define -- or fail to define -- whether and under what circumstances a reporter can protect his or her sources. Two of the cases involved a reporter for the Louisville Courier-Journal named Paul Branzburg, whose articles about unnamed young men turning marijuana into hashish and selling illegal drugs had excited the imaginations of local prosecutors. In addition, reporters for a New Bedford, Mass., television station and The New York Times had separately reported stories involving anonymous sources about possible illegal activities on the part of the Black Panthers. The court's decision, known as Branzburg v. Hayes, is ambiguous enough that, 32 years later, it continues to be cited to support any and all positions.
In a 5-4 decision, the court ruled against the journalists, finding that they had no First Amendment right to protect their sources, and that they would have to testify before the grand jury just as any other citizen would. Justice Byron White wrote, "From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished." In fact, from turn-of-the-century muckrakers such as Ida Tarbell and Upton Sinclair to Vietnam War correspondents such as David Halberstam and Seymour Hersh, investigative journalists somehow managed to do important work without claiming a constitutional right to protect their sources. In the 1970s, though, such matters as the Pentagon Papers and Watergate brought new attention to governmental whistle-blowers, and to news media's need to protect their identities.
White's opinion, at least, had the virtue of being unambiguous. But one of the five justices who voted with him in the majority, Lewis Powell, wrote a concurring opinion stating that "a proper balance" must be struck "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." That balance, Powell added, must be evaluated on "a case-by-case basis." The four dissenting justices were already of the view that journalists should enjoy at least some limited privilege in protecting confidential sources, and Powell's concurring opinion seemed to suggest that he agreed with them on principle.
The practical effect of the Branzburg decision was that many states and the federal government developed guidelines that must be followed before a prosecutor can demand that a journalist give up his or her confidential sources. Those guidelines generally involve demonstrating that the information being sought is vital to an ongoing criminal investigation, and that other means of obtaining that information have been tried and have failed. About three dozen states, including Louisiana, have so-called shield laws aimed at protecting reporters, but none of those laws is absolute. Massachusetts does not have such a law. Rhode Island does, but it's never been tested, and in any case does not offer any protection to Jim Taricani, since the leak of the surveillance tape is being investigated by federal rather than state authorities. Though shield laws sound good in theory, they rarely offer a journalist -- or, for that matter, a source -- much more protection than the guidelines that most prosecutors follow already. And because the Sixth Amendment guarantees that someone accused of a crime may compel witnesses to testify, a shield law offering absolute protection would probably be unconstitutional.
Taricani declined to comment on his case, referring me to WJAR spokeswoman Clare Eckert, who said, "We are disappointed by the ruling of the Court of Appeals for the First Circuit against our position. We continue to believe if the courts can compel reporters to disclose the identity of a confidential source, many sources will withhold newsworthy information that is important to share with the public. Mr. Taricani respectfully declines to identify his confidential source."
Taricani's lawyer, Jonathan Albano, of the Boston firm Bingham McCutchen, declined to discuss the specifics of the Taricani case. But he offered some pointed words on the matter of why confidential sources can be important -- and why journalists should be able to protect their identities.
"If you talk honestly to elected officials and, for that matter, judges, I don't think anybody would dispute that they have said things off the record that they would never say if those statements were going to be attributed to them," Albano says. "There are many instances in which people just aren't willing to pay the price. It's not really about reporters trying to say, We're a special breed, we're above the law.' It's really about what's the most fair way that people feel willing to speak about government issues."
PERHAPS THE MOST PECULIAR ASPECT of the Valerie Plame probe is that Patrick Fitzgerald, the special prosecutor, appears to be going after everyone except the one person who unquestionably knows which "[t]wo senior administration officials" outed her to Robert Novak. And that would be Robert Novak. Presumably Novak does not face criminal charges; it's the White House that's being investigated for exposing Plame's identity, not Novak for sticking it in his column. (Novak, through a spokeswoman, declined to comment, as did his Washington, D.C.based lawyer, James Hamilton.)
Although no one knows the explanation for sure, one well-educated guess -- offered by Jonathan Albano, among others -- is that Novak, at least so far, is benefiting from the very guidelines that grew out of the Branzburg decision. That is, investigators do not want to ask a judge to compel Novak's testimony until they can show that they've exhausted all other potential sources of information. The irony in this case, of course, is that those other potential sources are all fellow journalists.
Perhaps Novak's day is coming. Yet it was galling to see someone like Matt Cooper, basically an innocent bystander, facing jail while the Prince of Darkness continues to glower at viewers from his perch on CNN and to service sources and settle scores in his syndicated column. The Nation's Washington editor, David Corn, the first journalist to report that the outing of Plame was evidence of a possible crime, says Novak should have handled the leak in an entirely different manner, although he supports Novak's right not to identify his sources. Corn says Novak could have written that "these guys are willing to blow a national-security secret" in order to impeach Joseph Wilson's credibility. "You could say, It's not derogatory information about Joe Wilson, but it is national-security information, and I'm not going to play with them,'" Corn adds. Clearly, though, Novak was more interested in tormenting Wilson and Plame than he was in biting the hands of his well-connected benefactors.
In agreement with Corn is Alex Jones, director of the Joan Shorenstein Center on the Press, Politics, and Public Policy, at Harvard's Kennedy School. "I do regard releasing Valerie Plame's identity as a CIA agent, outing her, a genuine secret that was disclosed. This is not about politics," Jones says. "It seems to me that it's pretty fundamental that when you're given the name of a covert CIA agent, you might say, Wow, what a great story,' but as a citizen you would say, Wait a minute, I can't do this.'"
Of course, the journalists-behaving-badly angle is hardly a new story line. And to the public, already wary of the news media's over-reliance on anonymous sources and overweening arrogance, the claim put forth by the likes of Matt Cooper and Jim Taricani -- that what they do is so important that they should be exempt from the obligations of ordinary citizens -- might ring pretty hollow. After all, the First Amendment is for all of us, not just for those who work for major news organizations. Justice White, in Branzburg, noted that carving out any sort of special privilege for reporters would necessarily involve defining who is and who is not a journalist -- "a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."
To put it in a 21st-century context, the anchor of a major television news network should enjoy nothing more in the way of First Amendment protections than does a lonely blogger posting to the Internet in the attic of her parents' house.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, forthrightly argues that reporters should receive special privileges, because "the press is the only entity mentioned in the Constitution. And the whole idea behind that is to make sure that there is a free flow of information to the public." But Dalglish would define who is entitled to those special privileges not by who they are, or whom they work for, but by what they do.
It's a crucial difference. Several years ago, a Houston-area woman named Vanessa Leggett was jailed for a mind-boggling 168 days for refusing to turn over tapes and notes she had compiled in the course of interviews conducted for a book she hoped to write about a 1997 murder. Leggett's situation was made infinitely more difficult because of questions about whether she was a "real" journalist, worthy of the same protections as, say, a reporter for the Houston Chronicle. She was finally released in early 2002 after the grand jury investigating the murder was dissolved.
Dalglish's answer to Leggett's dilemma is that protections should be extended to anyone engaged in journalism -- as Leggett surely was. "Her intention all along was to publish a book for public consumption," Dalglish says. Or as Leggett herself has been quoted as saying, "It's not the institution of journalism that needs to be protected, it's the act of journalism."
EVEN THOUGH IT'S BEEN MORE THAN 19 years since she nearly went to jail for refusing to name a confidential source, Susan Wornick's memory of that time remains vivid. "I was an hour away from going to MCI-Framingham," says Wornick, an anchor and reporter for Boston's WCVB-TV. She calls the experience "terrifying," explaining, "I knew there was nothing that was going to happen to me while I was in jail. But what I was scared to death of was losing my freedom."
Wornick got lucky. At the last minute, her source -- a man who'd told her in an interview, with his back to the camera, that he'd seen six police officers stealing from a Revere drugstore -- came forward to spare Wornick a three-month prison sentence. But any sense Wornick might have had that her battle had struck a blow for press freedom has long since dissipated. "It's truly unbelievable to me that here it is 2004, and we're still talking about these contempt-of-court charges against reporters in America," she says.
Wornick handles sources differently since her near-jailing. "I would never in a million years, based on what happened to me, pass on a great story, an important story," she says. "What I do that is different now, in every case, I still promise anonymity. However, what you need to know as my source is the potential of what can happen. This can become a big news story, this can become a big issue, and how are you going to feel personally? I'll go to jail. Will you let me go to jail? That's what it comes down to."
Perhaps that, more than anything, gets at what is wrong about all this. Depending on how a particular judge at a particular time in a particular place interprets Branzburg, reporters may very well be required to disclose the identity of their sources. But guess what? They're not going to. No one wants to go to jail. But for a reporter, doing time on a matter of principle is a great career move. More to the point, any reporter who would give up a source in order to avoid jail is quickly going to become an ex-reporter.
Last month, Joseph diGenova, a former U.S. attorney, appeared on The NewsHour With Jim Lehrer to argue against the notion that reporters have even a qualified privilege to withhold their sources' identity. "But I must say I understand the position of the journalists here," diGenova added. "And as someone who has worked with journalists over the years and talked to them and given them information, I certainly am not going to talk to journalists who aren't going to go to jail for me. I'll tell you that right now." No kidding. And that, really, underscores the absurdity of this entire mess. Matt Cooper, Jim Taricani and Susan Wornick are not journalists who give up sources.
The worst thing that you can say about a law is that it doesn't work -- that no one will obey it and that, in fact, defying it only adds to one's prestige and reputation. It's hard to see how the threat to jail Cooper moved the Plame investigation along, advanced the cause of justice, or did anything other than provide a little cover for a probe that seems to be going nowhere.
Lucy Dalglish's fear is that "the only people who end up in jail as a result of this whole thing are the reporters." For President George W. Bush, it would be the perfect outcome to an embarrassing episode. This may be a small-minded wish, but if Matt Cooper ever would have to serve time in prison, I hope Bob Novak has to serve one day more.
- Scott Getchell