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Unanimously and without the slightest equivocation, the federal court of appeals in Washington has now rejected claims by Judith Miller and Matthew Cooper, reporters for The New York Times and Time magazine, respectively, that a First Amendment-based privilege allows them to refuse a judge’s order to identify confidential news sources to a federal grand jury. This train wreck was entirely predictable — and predicted. So remote were the chances of convincing the court of the media’s claim to a constitutionally required exemption from the obligation to give evidence that one has to wonder whether Time and the Times were bent on committing legal suicide. And they no doubt are about to compound the blunder by seeking review in the U.S. Supreme Court, where the same First Amendment arguments will be met with even greater hostility. The only good that can come of this litigation is pressure on Congress to enact a “shield” law, and in fact new shield bills have been introduced in both the Senate (S. 3440, by Sen. Richard Lugar, R-Ind.), and the House (H.R. 581, sponsored by Reps. Mike Pence, R-Ind., and Rick Boucher, D-Va.). The identical bills provide absolute protection against subpoenas for confidential sources, and qualified protection for other information. But in an ill-considered concession to establishment media, both bills also exclude coverage of purely Web-based news sources — thereby violating the First Amendment at the same time that they attempt to shore up its protections. The trouble started when the Chicago Sun-Times’ Robert Novak wrote a column criticizing former U.S. Ambassador Joseph Wilson over an op-ed piece Wilson had written in the Times. In his column Novak described Wilson’s wife, Valerie Plame, as a CIA operative. Novak attributed information about Plame to two unnamed Bush administration officials. A few days later, Time reported similar information in a story co-authored by Cooper. A federal grand jury was convened to investigate the disclosure of Plame’s CIA affiliation, and it subpoenaed Cooper and the Times’ Miller to try to find out who in the administration leaked the information. Are Miller and Cooper certain to go to jail for refusing to reveal their sources? Not necessarily. They have been found in civil, not criminal, contempt. The distinction means, among other things, that they can’t be jailed or fined beyond the duration of the grand jury that subpoenaed them. The Plame grand jury’s 18-month term will expire in April. Between now and then Miller and Cooper will be free pending their lawyers’ attempts to have Tuesday’s decision reviewed, either by the full court of appeals or the Supreme Court. Although the grand jury’s term could be renewed for another 18 months, one suspects that special prosecutor Patrick Fitzgerald has no desire to make Miller and Cooper martyrs for the First Amendment. Having successfully defended the subpoenas and vindicated the government’s investigatory powers, Fitzgerald has little to gain by conducting a “perp walk” for reporters whose only offense has been to do their jobs. But if the grand jury is extended, then what? Miller and Cooper — and other reporters facing similar legal peril in private lawsuits pending in federal courts — should take their cue from Novak, whose column about Plame started the whole sorry chain of events. If anyone knows who leaked the Plame story to Novak, it is, of course, Novak. And yet he sits contentedly on the sidelines, a what-me-worry grin on his face, while other reporters are harassed with subpoenas to find out what could more reliably and directly be determined from Novak himself. So, why isn’t Novak looking at jail time instead of Miller and Cooper? Here’s my theory: I believe that Novak’s lawyer has advised the special prosecutor that, if subpoenaed to appear before the grand jury, his client would assert the Fifth Amendment privilege against self-incrimination. I suspect he has argued that Novak’s testimony would put him at risk of accessory liability under 50 USC 421, which makes it a crime, in certain circumstances, to “knowingly disclose” the identity of a U.S. “covert agent.” The fact that a prosecution of Novak under 50 USC 421 is highly improbable does not bar the privilege. Just as improbable — for reasons that have been pointed out by expert criminal defense lawyers — is a prosecution of the source for Novak’s column. Yet a special prosecutor has spared no expense in an exhaustive two-year investigation to do just that. Reporters who rely on confidential sources should get used to the idea of “taking the Fifth” when they can’t take the First. Despite its association with violent Mafiosi and corrupt politicians, the Fifth Amendment needn’t carry a stigma if, as in the case of reporters protecting a confidential source, the crime for which one fears prosecution consists only of doing one’s job. Yes, taking the Fifth implies guilt. But when the proscribed conduct ought not to be criminal at all, who cares? There is no dishonor in taking the Fifth when one is contesting the very legitimacy of the judicial proceeding. On the contrary, that is a role in which reporters ought to feel quite comfortable. Peter Scheer, a lawyer and former editor and publisher of The Recorder, is executive director of the California First Amendment Coalition, a nonprofit public interest organization involved in free speech and open-government issues.

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