Zeev's Turnips Talk Politics (ZTTP)

[Rick Faurot]

Plame Leak Case Could End in Supreme Court Stand-off
By Joe Strupp
Editor & Publisher

Tuesday 10 August 2004

New York - The recent pressure on reporters to reveal sources in the Valerie Plame investigation could end in a U.S Supreme Court standoff, according to two leading First Amendment attorneys, one of whom fears several leading Washington reporters could wind up in jail before it's over.

"I think we are headed for a showdown and it would not surprise me in the least to see half a dozen reporters sitting in a jail in D.C.," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which monitors such cases. She believes Time magazine and other media outlets "will be willing to take this all the way to the Supreme Court because the atmosphere here has become so difficult for journalists to promise confidentiality that the stakes are too high."

Sandra Baron, executive director of the Media Law Resource Center, agreed. "Eventually it will go to the Supreme Court," she said. "I'm not sure if a lot of people want to see that because there is always the danger that the Supreme Court will take a strong stand against the press on this issue."

Dalglish's and Baron's comments followed word Monday that Time reporter Matthew Cooper had been held in contempt of court for failing to reveal sources who disclosed that Plame was an undercover CIA officer. In addition, Walter Pincus, a reporter for The Washington Post, received a subpoena Monday ordering him to testify in the investigation, which is being directed by special prosecutor Patrick J. Fitzgerald. Other newspaper reporters are expected to receive subpoenas soon.

The Plame investigation stems from a July 14, 2003, column by syndicated columnist Robert Novak that revealed Plame, who is married to a former diplomat, was a CIA officer. Fitzgerald was appointed to track down how the information was leaked.

Novak has not said if he has received a subpoena in the investigation, but federal investigators have already interviewed Glenn Kessler, another Post reporter, and NBC commentator Tim Russert. "I think they are trying to go after the easy folks first who are not protecting confidentiality of any sort," Dalglish said. "They are trying to exclude alternate sources before they go after Novak, whom they know has confidential sources."

Baron warned that the prosecutor's ongoing efforts to demand information from reporters in the Plame case could create a dangerous atmosphere for journalists, and cause some sources to dry up. "My fear is they will continue to subpoena reporters looking for sources," she said. "Whenever you have that, it puts the entire reporting community and sourcing community on edge. It suggests open season for prosecutors who are looking for a short cut for answers in a grand jury investigation."

The Supreme Court last ruled on the issue in Branzburg vs. Hayes, the well-known 1972 case that offered a vague split decision. Five justices held that there was no privilege for journalists, but agreed that a qualified privilege should apply in some circumstances, which was the position of the four justices in dissent.

The qualified privilege, enunciated by Justice Stewart in his influential dissent, imposes a three-part test before journalists may be compelled to reveal confidential information to a grand jury. The information must be clearly relevant, cannot be obtained by alternative means "less destructive of First Amendment rights" and be of "compelling and overriding interest," according to the Center for Individual Freedom.

http://www.truthout.org/docs_04/081204C.shtml