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"It does feel like open season," Laura Handman, a First Amendment lawyer based at US firm Davis Wright Tremaine told The New York Times (NYT) last month in the aftermath of the Judith Miller affair. US journalists report that, in the land of the free, there are a rising number of court orders demanding that sources be disclosed. Miller, an NYT reporter, is the latest 'martyr to the cause'.
Handman blamed the Bush administration's emphasis on secrecy as one reason for the decidedly chilly turn in the legal climate surrounding journalists. "This leads to more leak inquiries, which in turn leads to more subpoenas," she argued.
Miller is currently serving four months at Virginia detention centre after refusing to testify before a grand jury investigating the leak of an undercover CIA agent. It is unlikely to be an easy time for the reporter, known for her coverage of Iraq's supposed weapons of mass destruction. She was denied house arrest because the prosecutor reasoned that it was unlikely to be "a compelling form" of coercion. "Certainly, one who can handle the desert in wartime is far better equipped than the average person jailed in a federal facility," he added.
The writing's on the wall
Kurt Wimmer, a media partner at US firm Covington & Burling, is chair of the First Amendment Council of the Media Institute. He believes that the US's constitutional protections for journalists are being eroded to a worrying degree. "The laws concerning contempt are dealt with by each state separately and then by the federal government separately as well," he says. Thirty-one states plus the district of Columbia have 'shield' laws (which protect First Amendment rights) in force in state courts, while 17 other states have recognised a reporter's privilege in the courts. "In other words, you have cover in 49 of 50 states, and if you're in Wyoming you're just out of luck," he adds.
"But on the federal side, there's no shield law governing this and there have been court decisions in various federal courts that have said, without some protection for news-gathering, the First Amendment [guaranteeing free speech] would be an empty promise," Wimmer continues. "That protection has really tapered off over the last few years and we're getting many more demands for testimony and notes from reporters. It's become almost a crisis here."
According to the Newspaper Association of America (NAA), over the last 18 months nearly two-dozen broadcast and print reporters have been subpoenaed or questioned about their confidential sources.
Miller investigated, but never reported, on a story naming the CIA agent Valerie Plame, whose husband Joseph Wilson, a former ambassador, had written an NYT article questioning US intelligence on Iraq. A leak investigation began after undercover CIA officer Plame's name was published by columnist Robert Novak in July 2003. That naming was a criminal offence and an inquiry was launched into who had provided the information. Following the Novak column, several other journalists, including Matthew Cooper of Time magazine, reported receiving the same information. Miller and Cooper were both subpoenaed. Bizarrely, Novak was not, and as far as the outside world is concerned nothing is known of his contribution. The leak has been characterised as political skulduggery and an attempt to discredit Wilson for his outspoken stand on the Bush administration's claim that Iraq had been attempting to buy uranium from Niger to make nuclear weapons.
The US District Court in Washington DC kicked out the attempts of journalists to quash their subpoenas on First Amendment grounds - a view later endorsed by the Court of Appeal last December, which held that no privilege protects journalists from being compelled to reveal their confidential sources when called to testify before grand juries. The judges agreed unanimously that the First Amendment does not provide a privilege from testimony before a grand jury, but were split on the issue of whether a common law privilege existed. Miller, Cooper and Time appealed their cases to the US Supreme Court, but to no avail.
Martin Soames, a media litigation partner at DLA Piper Rudnick Gray Cary, points to the US Supreme Court ruling of Branzburg v Hayes (1972), where the court recognised that freedom of speech could be sacrificed when there was a compelling need for it to be overruled. The "only hope" for the media, says Soames, came from dissenting judgments which suggested that journalists "should only be compelled in rare circumstances". By contrast, he points to the protections afforded by the Contempt of Court Act 1981, Section 10, which says that a court cannot require someone to disclose sources unless the court is satisfied disclosure is necessary "in the interests of justice or national security or for the prevention of disorder or crime".
"It's always disturbing to see a court overcome a journalist's assertion of privilege and even more disturbing to see that result in a journalist in prison," comments John Borger, a media partner in the Minneapolis office of Faegre & Benson. "What happens is that it tends to encourage lawyers with less meritorious arguments to try and get information out of their sources." Cooper avoided the same fate as Miller at the last minute after the source allowed him to divulge his identity. His employer, Time, appeared to cave in when, against Cooper's wishes, it handed over documents to the court. Time noted that "even presidents have followed orders with which they strongly disagreed".
"The publisher of Time made a reasonable judgement that, if anyone could just ignore the orders of the Supreme Court, there really would be anarchy in the US," comments Wimmer. "For the individual reporters there's a different calculus - Matthew Cooper and Judith Miller don't have shareholders and boards of directors [to answer to]. It's just them and all they have is the integrity of their reporting."
The Miller saga has energised efforts to persuade Congress to adopt a shield statute on the federal level with similar protection to those that exist at state level. Covington represents the NAA, which is one of more than 80 media groups and companies calling on Congress to pass the Free Flow of Information Act. It would allow testimony to be compelled from a journalist only after non-media sources have been exhausted and such testimony is essential to the investigation of a criminal case or to the resolution of a civil case. House of Representatives and Senate versions of the bill have been stalled in Congress since their introductions in February. "The First Amendment protection isn't being enforced by the courts and there's nothing we can do but to ask Congress for help," Wimmer concludes.