THE U.S. COURT of Appeals for the District of Columbia Circuit yesterday affirmed a lower-court ruling that holds two reporters in contempt for refusing to testify in the federal investigation of the leak of Valerie Plame's identity as a covert CIA operative. The decision, which was expected, ups the ante in what has become a dangerous confrontation between prosecutorial needs and the ability of journalists to do their jobs without being threatened with imprisonment. Unless the full appeals court or the Supreme Court intervenes, Judith Miller of the New York Times and Matthew Cooper of Time magazine will face a terrible choice: be jailed or break the solemn promise of confidentiality that underlies much essential journalism. Either the Supreme Court or Congress should relieve them of that burden.
The three-judge panel rejected arguments that the First Amendment creates a privilege against compelling reporters to reveal their sources in criminal investigations. And while the judges split on whether to recognize a more limited privilege as matter of judicial policy, they all agreed that, as Judge David B. Sentelle put it, "if such a privilege applies here, it has been overcome" by evidence submitted in secret by special counsel Patrick J. Fitzgerald. The decision, therefore, offers the Supreme Court a chance to reconsider its 1972 decision in Branzburg v. Hayes or to recognize a privilege under federal court rules. In Branzburg, the court declined to recognize a reporter's right under the First Amendment to remain silent about sources before a grand jury. Lower courts, relying on the narrow split in the case and on the separate opinion of the justice whose vote gave the Supreme Court its majority, have often recognized the privilege in other contexts. But Branzburg considerably ties the hands of any lower court. The Supreme Court, by contrast, is free to rethink the question, as Judge David S. Tatel pointed out in a separate opinion. We don't underestimate Mr. Fitzgerald's investigative needs, but the alarming proliferation of civil and criminal cases in which reporters are being forced to reveal their sources begs for a fresh look.
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The more promising route may be legislative. Nearly all states have statutes or case law that, to some degree, protects a reporter's ability to keep sources confidential. The federal government is a big exception. Reps. Mike Pence (R-Ind.) and Rick Boucher (D-Va.) recently introduced legislation to limit subpoenas of reporters and to prevent the compelled disclosure of confidential sources. Richard G. Lugar (R-Ind.) introduced the same bill in the Senate. (The Post is fighting subpoenas in court and, along with other media organizations, supported Mr. Cooper and Ms. Miller's appeal in a friend-of-the-court brief. Post officials are actively backing legislation to enact the privilege.) This would hardly be a dramatic step: Federal courts already refrain from forcing psychotherapists to disclose conversations with patients, priests from violating the silence of the confessional and attorneys from giving up client secrets. The rationale is that securing certain professional communications warrants giving up certain evidence. The function that journalists carry out in bringing important information to the public and enabling democratic debate merits a similar shield.
