The US Court of Appeals for the District of Columbia Circuit today upheld a lower court order holding two reporters, Matthew Cooper for Time and Judith Miller for the NY Times, in contempt of court for refusing to testify about their confidential sources in the scandal surrounding the outing of ex-CIA operative Valerie Plame by douchebag of liberty Robert Novak. (Why no subpoena yet for Novak? Our theory is here.)
The three-judge panel includes one extremely conservative judge (Sentelle) and one fairly liberal judge (Tatel). All three judges agreed that reporters have no First Amendment right to refuse to disclose confidential sources.
Judge Tatel is the only judge on the panel who was willing to extend to reporters some sort of non-constitutional common law privilege against disclosing confidential sources (Sentelle rejected such a privilege outright, and the third judge, Henderson, didn’t want to reach the issue). But Tatel rejected the reporters’ position that such a privilege should be absolute, concluding that courts should not "protect sources whose leaks harm national security while providing minimal benefit to public debate." He outlined a test for cases like this one, in which the government seeks to prosecute an allegedly illegal leak, as follows:
In leak cases, then, courts applying the privilege must consider not only the government’s need for the information and exhaustion of alternative sources, but also the two competing public interests lying at the heart of the balancing test. Specifically, the court must weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leak’s information value.
….
In short, the question in this case is whether Miller’s and Cooper’s sources released information more harmful than newsworthy. If so, then the public interest in punishing the wrongdoers — and deterring future leaks — outweighs any burden on newsgathering, and no privilege covers the communication …..
Tatel argues that his test, while "flexible," is "hardly unmanageable," and points out that courts apply similar tests in a variety of other contexts.
Tatel goes on to describe the leak of Plame’s identity as "a serious matter" which "had marginal news value." He reasons as follows:
To be sure, insofar as Plame’s CIA relationship may have helped explain her husband’s selection for the Niger trip, that information could bear on her husband’s credibility and thus contribute to public debate over the president’s "sixteen words." Compared to the damage of undermining covert intelligence-gathering, however, this slight news value cannot, in my view, justify privileging the leaker’s identity.
Tatel then analyzes the specifics of the case for nine pages, which would be a great read but which unfortunately have been redacted (presumably for "national security" reasons). But he concludes that "based on an exhaustive investigation, the special counsel has established the need for Miller’s and Cooper’s testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas."
Today’s decision is undoubtedly not the end of the matter. The reporters have already said that they intend to ask the full D.C. Circuit Court of Appeals to review the panel’s decision, and Supreme Court review seems quite possible after that. But today’s opinion is an important statement by an important court that reporters, like the rest of us, have at least some obligation to tell the government what they know when a serious crime appears to have been committed. Personally, I think that’s on balance a good thing.
This post is already too long, but I cannot end it without noting that almost three months ago I wrote that in deciding whether reporters should be required to disclose their sources, it was appropriate to measure whether publishing the information supplied by the source served or harmed the public interest. I concluded that the Plame-gate disclosures did a good deal of harm and very little good, since the information was not particularly newsworthy and seemed only to serve a political vendetta. I confess to being pleased that Judge Tatel’s analysis and conclusions are in many respects similar to mine.
The Repukes have been caught with their balls in the cookie jar. What’s more, their pals at the White House are going down in the Valerie Plame imbroglio. Unlike Cheney’s secret energy meeting that was squashed by the Supreme Court, this little baby has legs. Hairy legs. That lead all the way to the president.