Federal appeals court judges suggested yesterday that reporters might be able to refuse to reveal the names of their confidential sources in selected criminal investigations but have no blanket protection against the responsibility to testify before a grand jury.
The three-judge panel weighed arguments yesterday in a press-freedom dispute that pits reporters' ability to gather information about an increasingly tight-lipped government against the Justice Department's right to require their testimony in its investigation of suspected leaks from the Bush administration.
The U.S. Court of Appeals judges here will decide whether reporters Matthew Cooper of Time magazine and Judith Miller of the New York Times can be jailed for refusing to appear before a grand jury investigating whether administration officials illegally identified a covert CIA operative to reporters in the summer of 2003.
The panel's decision, expected early next year, would mark the first time in 30 years that a federal appeals court specifically addressed whether reporters must break their promise to unnamed sources when a prosecutor is trying to solve a crime.
Time and the New York Times appealed the decision of a lower court judge, who found Miller and Cooper in contempt of court for refusing to appear before a grand jury investigating the suspected leak of CIA operative Valerie Plame's name to the media. Chief U.S. District Judge Thomas F. Hogan cited the 1972 decision in Branzburg v. Hayes, in which the Supreme Court concluded that a Kentucky reporter was required to identify people he saw manufacturing hashish because the government's need to solve a crime outweighed his promise to confidential sources.
At yesterday's hearing, Judge David B. Sentelle grew visibly irritated as he repeatedly asked longtime First Amendment lawyer Floyd Abrams to explain how Cooper and Miller's circumstances differed from those of the Kentucky reporter. Why would the pair not have to answer questions about whether government sources committed a crime and illegally leaked information to them, asked Sentelle, a critic of the media.
"If there's an answer to my question, I'd love to hear it. The question is as simple as it can be," he warned Abrams. "I take it you don't have [one] since you haven't advanced it yet given three, four or five opportunities."
Later, outside the court, Abrams said many court decisions and state laws enacted since 1972 give reporters special protections. During the hearing, Judge David Tatel said that "a lot has changed since Branzburg," noting that 49 states now have laws providing a confidentiality privilege to reporters akin to those for priests and therapists.
Deputy special prosecutor Jim Fleissner said reporters must testify if a crime is under investigation unless prosecutors act in bad faith or in a harassing manner. The possibility of allowing reporters to keep sources private "would be a question for the prosecutor to decide," he said.
Special prosecutor Patrick Fitzgerald's investigation centers on administration contacts with the media in the summer of 2003. That was when Plame's husband, former U.S. ambassador Joseph C. Wilson IV, published an opinion piece saying he had led a special mission to Niger to determine whether Iraq had sought to obtain nuclear material there and complained that the Bush administration had exaggerated intelligence to justify a war with Iraq. On July 14, 2003, syndicated columnist Robert D. Novak was the first to identify Plame as a CIA operative, and he quoted administration sources as saying she had recommended her husband for the mission.