Tuesday, June 28, 2005

Reporters Must Testify or Go to Jail

The Supreme Court declined yesterday to hear the case of 2 reporters who had refused to testify in the Valerie Plame investigation about conversations with confidential sources. The reporters, who work for Time magazine and the New York Times, face a sentence of up to 18 months in jail.

The reporters were ordered to testify because they might have first-hand evidence of a federal crime. The investigation of the possible crime arose from a syndicated column naming Plame as the one who recommended Joseph Wilson, her husband, to look into Iraq's dealings with Niger to purchase yellowcake uranium. After the disclosure and in an effort to embarrass the Bush administration, Democrats and the mainstream media (MSM), including Time and the New York Times, clamored for an investigation into the identity of the leaker, who may have committed the crime of disclosing the name of an undercover CIA agent. Although there were serious reservations about whether a crime had actually been committed, the political pressure led to the naming of an independent prosecutor to investigate the case.

The investigation ironically turned up the 2 MSM reporters as fact witnesses. Now that the legal avenues have been almost exhausted, we will see whether the reporters will go to jail rather than reveal their anonymous sources and their conversations with them.

The Supreme Court long ago rejected the argument that the First Amendment protects reporters who face grand jury subpoenas and thus had no need to revisit the issue. The Times wrote a slanted article that blames conservatives and hostility toward the press for the legal atmosphere in which the courts are reluctant to grant First Amendment protection to reporters who have knowledge of facts relating to a crime.

As the article also points out, however, the federal courts treat reporters the same as ordinary citizens. As a general rule, a person who has knowledge of facts about a crime is required to testify. Why should reporters be treated differently?

The issue is not completely one-sided. Many states exempt reporters from testifying, based on the theory that the public benefits more from the publication of information about crimes than it loses from the absence of a reporter's testimony even when it may be critical to conviction. Congress has not provided an exemption for reporters in federal cases. Thus, reporters must try to convince federal judges that the First Amendment (freedom of the press) requires that the government may not compel a reporter to testify.

The Supreme Court decided that the First Amendment protects the right of reporters to publish what they will but does not exempt them from testifying when they have knowledge of facts relevant to a criminal case. This result seems consistent with the intent of the First Amendment's recognition of freedom of the press and with the general duty of all citizens to give evidence of crimes. Privileges not to testify are limited in number and are interpreted narrowly because of society's need for information in determining a defendant's guilt or innocence.

In the end, society as a whole must determine whether to shield a reporter from testifying about personal knowledge of a crime. In my opinion, the federal system has it right: A reporter may publish information without restriction but, like an ordinary citizen, can be compelled to testify when the reporter has first-hand evidence related to a criminal case.

If newspaper and magazine reporters are granted a privilege not to testify, why not give the same privilege to the anonymous sources? After all, the same purpose of making information available to the public would be served. The fact that we do not even consider a privilege for the anonymous sources is revealing.

If we do grant reporters a privilege not to testify, do we include bloggers and others who also disseminate information? If not, how are they different? If the public benefit is the publication of information by the press, how do you justify the exclusion of newer forms of publishing information? How do you distinguish the newspaper reporter from anyone else who disseminates information?

In this particular instance, consider that the same news organizations that demanded a thorough and independent investigation are now refusing to give evidence in the investigation. Does this stance seem right? I think not.

(Hat tip to How Appealing)

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