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The last few months have seen an unprecedented number
of judicial assaults on freedom of the press. Three
different federal judges have slapped journalists
with contempt orders for refusing to reveal their
anonymous sources in government investigations, punishing
two of them with jail time. It is, say media advocates,
an alarming trend that threatens the role of the press
as the nation’s watchdog.
On December 9, a federal judge in Rhode Island sentenced
an NBC television reporter to six months home confinement
for refusing to disclose an anonymous source, after
his imposition of a $1,000 per day fine failed to
break the hapless reporter.
Most notoriously of all, a federal court in Washington,
D.C., sentenced a New York Times reporter, Judith
Miller, to a maximum of 18 months in prison for refusing
to testify before a grand jury. The government, which
is trying to find out who leaked the name of a covert
CIA operative to the press, wants Miller to describe
any conversation she had with a specified government
official.
Miller, who never even wrote about the operative,
appears to have been punished merely for contemplating
a piece about the operative and for conducting interviews
for it. For his refusal to disclose a confidential
source in the same investigation, a reporter for Time
magazine, Matthew Cooper, received a similar prison
sentence. Their sentences have been stayed and were
heard by a federal appeals court on Wednesday.
What has media watchdogs most alarmed is the apparent
spike in these contempt orders. According to the Reporters
Committee for Freedom of the Press, in the past 20
years, only 14 journalists have been jailed for refusing
to reveal their sources. “The American legal
system seems less willing than ever to safeguard freedom
of the press,” says one New York media lawyer.
“For all the brouhaha about the recent presidential
election, our democratic pulse is quivering and has
no attending physician.”
American journalists have long had a parlous relationship
with the law, though. Their qualified privilege to
refuse to disclose sources stems from Branzburg v.
Hayes, a 1972 Supreme Court case that weighed a reporter’s
First Amendment rights against the other party’s
need for disclosure.
For more than a quarter of a century, prosecutors
have agreed to exhaust every other means of investigation
before demonstrating the vitality of a reporter’s
confidential information to their case. And, in Wednesday’s
hearing, the three-judge appeals panel strongly suggested
that Branzburg conclusively answered the question
of whether Miller and Cooper have any privilege to
refuse to testify when questioned about their sources.
For some media watchdogs, though, the apparent restriction
of press freedom finds its genesis in the Bush administration’s
modus operandi since September 11. “You’ve
got this post-9/11 world which has sharpened everybody’s
feelings about these things,” said Michael Getler,
The Washington Post’s ombudsman, during a panel
discussion at the National Press Club in September.
“You have an administration that’s quite
devoted to secrecy in a lot of its forms [and] a Justice
Department which may not temper the court rulings,
as has happened in the past.”
Under the catch-all provision of ‘homeland
security’, vast amounts of unclassified material
have been placed beyond the reach of the press and
the public, leaving reporters to rely more and more
on officials who leak information or who speak off
the record. As the New York Times columnist Nicholas
Kristof wrote recently, “It’s probably
not a coincidence that we’re seeing an offensive
against the press freedoms during an administration
that has a Brezhnevian fondness for secrecy.”
But the courts’ increasing reluctance to recognize
a qualified privilege for journalists may also reflect
the reality that the advent of the internet and blogging
has made it harder to decide who is a “journalist”
and is thus eligible to claim the privilege. Judith
Miller’s case may yet reach the Supreme Court,
giving it an opportunity to consider this question
and even to recalibrate the parameters of press freedom.
Yet, as media advocates are quick to point out, the
specter of American reporters being imprisoned should
trouble anyone who cherishes the importance of the
press in international business and politics. The
fear is less that a few brave reporters will be thrown
in jail, and more that the ability of the American
media to strip away layers of official secrecy will
be significantly hamstrung.
From Watergate to the nefarious practices of the
tobacco industry, the protection of confidential sources
has facilitated the free flow of information and the
exposure of corruption and scandal. “Without
the ability to keep sources confidential, a great
deal of information would just dry up,” says
David Schulz, an adjunct professor of law at Fordham
University in New York. “The press would, at
best, become a toothless watchdog, and could not effectively
serve its historic role.”
At stake in the coming months, as Miller and Cooper
appeal against their sentences, is the ability of
the American media to disclose the crimes and misdemeanors
of its government and private institutions. But, as
one lawyer quipped, “If freedom’s on the
march, it’s heading in the wrong direction.”
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