Gene Barton

As a former journalist myself, I’m somewhat torn by the ongoing controversy regarding the Valerie Plame disclosure and the rights of reporters such as Judith Miller and Matt Cooper to refuse to disclose their confidential sources, even in the midst of a criminal investigation. The recent revelation and resulting discussions of Deep Throat’s identity simply add fuel to the debate.

I once went to jail -- I was arrested by a good friend, booked and held until the company mouthpiece sprung me and two of my colleagues -- defending my newspaper’s First Amendment rights. It was an open meetings issue, not a source issue, in which we were arrested on trespassing charges after (in succession) entering a county commission executive session where a lawsuit against our newspaper was the topic of discussion.

If you had asked me 12 years ago, when I was still in the game, the staunch reporter in me would have screamed, “Hell, yes, I have a First Amendment right to protect my confidential sources.” For those who hold the same opinion today, Miller is a hero and Cooper is a pariah. But, for me, I don’t feel the same way anymore.

Let’s think about Bob Woodward/ Deep Throat and Cooper-Miller/Karl Rove (or whoever their confidential source was). As far as I can recall, no one ever called Woodward before a grand jury or a Senate hearing and asked him to reveal Deep Throat’s identity. Nixon’s goons might have wanted to take him into a dark alley and beat it out of him, but he never raised his right hand and refused to answer the question or refused to respond to a grand jury subpoena.

Did Miller rightfully go to jail for contempt for refusing to appear before the grand jury and disclose her source in the midst of a criminal investigation? Or was she right? The Supreme Court has never ruled that the media have a privilege under the First Amendment -- “Congress shall make no law . . . abridging the freedom . . . of the press” -- to withhold the name of a confidential source when asked to do so in court as part of a criminal investigation. In fact, the Court has held exactly the opposite in Branzburg v. Hayes, 408 U.S. 665 (1972), upon which the D.C. Court of Appeals relied in February (397 F.3d 964) in holding that there is no such First Amendment privilege, qualified or absolute, and affirming the contempt citations issued to Miller, Cooper and Time, Inc.

The media believe that “freedom of the press” -- one of the fundamental freedoms upon which this country was founded -- will be stifled if they are not free to use whatever tools are at their disposal, including, in particular, the use of anonymous sources, to ferret out the important news of the day. This was the argument in Branzburg and, again, before the D.C. Circuit. It was not persuasive in either case. Of course, as the D.C. Circuit noted, there was nothing important about disclosing Valerie Plame’s identity as a CIA operative. What Woodward learned from Mark Felt was.

This is where future decisions may diverge. Although agreeing that there is no First Amendment privilege, one of the D.C. Circuit judges (all three members of the panel wrote separate concurring opinions in addition to the opinion of the court) recognized a common law privilege -- “albeit a qualified one” -- and advocated a balancing test. This was based on Justice Powell’s concurrence in Branzburg, in which he stated:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

At the end of the day, the scales -- to the extent they were used -- still tipped against the reporters. The one judge who expressly reviewed the contempt citations under a balancing test found: “While requiring [the reporters] to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires.” The entire panel also found that to the extent a common law privilege exists (an issue on which they did not agree), “it has been overcome.”

I still believe that the press has both a First Amendment privilege -- even though the courts do not -- and a common law privilege, albeit a qualified one (which has been found in many states, including Washington), to refuse to disclose confidential sources in both criminal and civil cases. But I also agree with Judge Tatel (see 397 F.3d at 986--87) that any privilege -- either common law or First Amendment -- is subject to a balancing test.