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In their ongoing court battle, reporters Judith Miller and Matthew Cooper may be trying to keep their sources confidential and stay out of jail, but larger issues are at stake for the media as a whole. Miller of The New York Times and Cooper of Time magazine have asked the U.S. Supreme Court to throw out the contempt citations they received from a D.C. federal judge for refusing to divulge their sources to a grand jury investigating the alleged leak of a Central Intelligence Agency operative’s name. The cases are scheduled for review at the Court’s June 23 private conference, the last of the term. At issue is whether reporters have a First Amendment right to withhold information from investigators during criminal proceedings. Currently, 49 states and the District of Columbia recognize some type of reporter’s privilege. In those states, journalists are protected from disclosing information they receive from confidential sources. There is no explicit protection for reporters under federal law, however, and federal courts have split on whether any protection exists. “It has been 30 years since the Court looked at this area,” says Charles Tobin, a partner at Holland & Knight and former in-house counsel for the Gannett Co. “It is an area that cries out for guidance, and the orders to jail journalists provide the urgency.” In their petitions, the reporters are asking the Court to revisit the landmark 1972 case Branzburg v. Hayes in which the Court ruled 5-4 that a reporter does not have a First Amendment protection from responding to a grand jury subpoena in a criminal investigation. Yet a concurring opinion by then-Justice Lewis Powell has caused some federal appeals courts to conclude that under certain circumstances reporters may be protected. Miller is represented by First Amendment expert Floyd Abrams while Cooper and Time turned to former Solicitor General Theodore Olson and his Gibson, Dunn & Crutcher partner Miguel Estrada. In addition, attorneys general from 34 states and the District submitted an amicus brief asking the Court to clarify the law. Olson’s involvement and the support of the state attorneys general could help steer the justices toward taking the case, according to media law experts, because it raises the profile of the issue while making it less political. “When the justices see there is an array of people coming from different perspectives, that helps,” says Mark Alexander, a First Amendment professor at Seton Hall University School of Law. But other legal scholars say the chances of the Court agreeing to hear the reporters’ appeal is a long shot, adding the Court has not given any indication that it is eager to revisit the issue of confidential sources. In addition, some media law professors say Miller’s and Cooper’s cases are not the best vehicle to reopen the issue because if a crime was indeed committed, then the reporters could possibly be shielding the alleged criminal from prosecution. “It seems to me on the facts, this is not a good case,” says Jonathan Entin, a professor at Case Western Reserve University School of Law who specializes in First Amendment issues. The reporters argue that without the use of confidential sources their ability to investigate and report on the news would be irreparably harmed. According to Miller’s brief, in the last 15 months, more than 70 journalists and news organizations have been engaged in disputes about unpublished information, with dozens of reporters being asked to reveal confidential sources. At least nine reporters now face the prospect of jail time or substantial fines. The controversy began in July 2003, after the Times published an op-ed piece by former Ambassador Joseph Wilson, who challenged the Bush administration’s claim that Iraq possessed, or sought to possess, weapons of mass destruction. In the Times, Wilson explained how he was sent to Niger at the behest of the CIA to investigate a report that Iraq had sought to obtain uranium from the African country. About a week after Wilson’s op-ed appeared, columnist Robert Novak wrote that “two senior administration officials” told him that Wilson was selected for his fact-finding mission at the suggestion of his wife, Valerie Plame, who the columnist identified as an “agency operative on weapons of mass destruction.” Three days later, Cooper followed up with an article that said “some government officials have noted to Time in interviews . . . that Wilson’s wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction.” Miller never wrote about Plame or Wilson, but did speak with sources about the issue, according to briefs submitted by the petitioners. After the articles appeared, the Justice Department opened an investigation into the source of the leak and appointed Patrick Fitzgerald, U.S. attorney for the Northern District of Illinois, as special counsel. Fitzgerald subpoenaed a number of reporters, including Miller and Cooper, to appear before a grand jury. Cooper and Time refused to comply with the subpoena and were found to be in contempt by Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia. They eventually reached an agreement with the special counsel to reveal some information. Another round of subpoenas followed. Cooper and Time again refused to comply and were held in contempt for a second time. Hogan ordered that Cooper be jailed for up to 18 months and for Time to be fined $1,000 a day until they complied. Miller also refused to comply with her subpoena and was found to be in contempt. Both reporters are out on bail pending their appeals. In February, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit affirmed the contempt orders, ruling that reporters do not have a First Amendment protection from revealing confidential sources to a grand jury. But the judges split on whether a common law reporter’s privilege exists — issuing three separate opinions on the matter. Judge Karen LeCraft Henderson wrote that the court did not need to consider the privilege issue because ex parte information submitted by Fitzgerald to Hogan during the District Court proceeding, justifying the need for the subpoenas, “overcomes any hurdle, however high, a federal common law reporter’s privilege may erect.” Judge David Tatel found that a reporter’s privilege in some circumstances did exist, but in this case the ex parte information would overcome the privilege. Judge David Sentelle wrote “that rejection stands unless and until the Supreme Court itself” reconsiders Branzburg. According to Miller’s brief, at least four circuits have recognized a reporter’s privilege in criminal cases, and at least 10 circuits have said similar protection is provided in civil cases. But, the government argues that “no court of appeals has recognized a federal common law reporter’s privilege in the grand jury context.” OTHER CASES UP FOR REVIEW June 23 Conference • McFarling v. Monsanto Co., No. 04-31. Can a patent holder prohibit a farmer from replanting seed as a condition of purchasing patent technology? • Bank of China v. NBM, No. 03-1559. Must civil RICO plantiffs alleging fraud as predicate acts establish reasonable reliance? • Shell Oil v. Dagher, No. 04-814. Is it illegal under the Sherman Act for joint ventures to set prices for sale of products? • Arpaio v. Demery, No. 04-983. Does the broadcast of the booking and detention process violate a detainee’s due process? • Comstock Resources Inc. v. Kennard, No. 04-165. Can individuals without firsthand knowledge of fraud pursue a qui tam suit? This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for review or that raise significant national issues. Thomas Goldstein of D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Bethany Broida can be contacted at [email protected].

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