Copyright 2004, San Francisco Chronicle

Slew of journalists under legal siege for not revealing sources

(San Francisco Chronicle 12/8/04) -- Judith Miller, author and reporter for the New York Times, and Matthew Cooper, reporter for Time magazine, will ask a panel of appellate judges in Washington, D.C., today to save them from possible prison sentences for doing their jobs as journalists.

A day later, a veteran Rhode Island television reporter who survived a heart transplant and wears a pacemaker will appear before a federal judge in Providence to be sentenced for refusing to name someone who helped him show a public official taking a bribe.

These three and more than a dozen other journalists around the nation are under an unprecedented legal siege, battling the efforts of prosecutors, judges and defense attorneys to acquire information about their confidential sources.

At stake, say media representatives and attorneys for the news organizations that employ these reporters, is the ability of journalists to fully inform readers, viewers and listeners about government and institutions in this country.

"This rather large number of cases is arising simultaneously and coincidentally -- that means it is an even more dangerous situation,'' says Peter Scheer, executive director of the California First Amendment Coalition, a 15-year-old San Rafael nonprofit. "If we don't allow confidential sources, then some of the most important news about our government won't be written.''

The assorted cases are being viewed as a litmus test of reporters' rights to protect their sources.

"We're in the eye of the hurricane,'' said Lee Levine, a Washington, D.C., attorney representing Los Angeles Times reporter Robert Drogin in a lawsuit by Wen Ho Lee, a onetime nuclear weapons scientist who was suspected of being a spy. Lee is suing the Justice Department and the Department of Energy on the grounds that they leaked private information about him to the press.

"The first wave of cases are going to the appellate courts -- in the next few months we'll get rulings about what kinds of protections reporters have,'' Levine says.

"I think it's likely we'll see some journalists behind bars as early as next week," predicted Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, during a talk show on CNN Sunday.

It's a remarkable turn of events for the news media.

For three decades, courts have generally held that a reporter's ability to protect sources and uphold promises of confidentiality trumped the need of prosecutors or others to force such disclosures.

"The First Amendment protections that journalists have depended upon and the public have benefited from are at great risk,'' said renowned media attorney Floyd Abrams, who represents Miller of the New York Times and Cooper of Time magazine. The two, free during the appeal, were sentenced in October to prison for refusing to disclose confidential sources connected to the outing of CIA operative Valerie Plame. Miller became a target of a special prosecutor despite not having written a single story about the Plame case.

"One of the things we are most regrettably seeing in the spread of this epidemic of subpoenas and leak investigations is a frontal attack on the ability of journalists to promise confidential treatment to sources,'' Abrams said. "A time will inevitably come when some of the best and most important journalism will be blunted and ultimately stopped.''

In 35 years as a lawyer, Abrams said he had never seen "such a string of cases where so many journalists are facing jail time for doing their jobs. ... When journalists promise confidentiality, they are now risking their own liberty.''

Many of the protections that journalists have known date to a 1972 Supreme Court finding in Branzberg vs. Hayes, which found that reporters are largely not protected from grand jury subpoenas. However, one of the justices who voted with the majority "appeared to say there was a First Amendment privilege, but it would have to be on a case-by-case basis,'' said Levine.

Since then, "the body of law that has developed is that there is a (qualified) privilege'' for reporters, said Levine. But during the summer, an influential Seventh Circuit judge in Chicago, Richard Posner, questioned that finding, ruling that reporters aren't protected from subpoenas.

"He said you guys have been getting a free ride, and there is no privilege,'' said Eve Burton, general counsel for Hearst Corp. She represents The Chronicle, which has been asked by Northern District U.S. Attorney Kevin Ryan for information on the source of stories about grand jury testimony, government documents and other matters related to the BALCO sports doping prosecution. The Chronicle has declined.

The Posner ruling "emboldened people to challenge conventional thinking, '' Burton said.

Currently, there are approximately 19 instances in which reporters are being asked to provide information on confidential sources to the government, Burton said.

"I think of it as a concerted effort by more conservative legal thinking to roll back the law,'' she says. "In these cases, it is one-stop shopping: Who is a better source of information than the reporter?"

Others, though, say there is no reason to grant special privileges to reporters who possess evidence of criminal actions, including the illegal release of secret government information.

Journalists should be held to the same responsibilities as ordinary citizens, Brian A. Sun, lawyer for Wen Ho Lee, said in a New York Times story.

"People are compelled to talk all the time," he said, "or they get thrown in the can for contempt. Very few prosecutors have been willing to take on the press, historically."

The recent upswing in First Amendment challenges has revived a long- slumbering effort to erect a federal shield law for reporters. While the majority of states, including California, currently have some form of shield law, on a national basis the measure has waxed and waned over the years.

During a five-year span after the Branzberg decision, 99 bills were introduced in Congress to provide some sort of shield, said Dalglish of the Reporters Committee for Freedom of the Press.

"But news organizations were disorganized; some said they would not accept a qualified privilege,'' she said. "Some were opposed to letting Congress define what a journalist is -- they believe it is the first step toward licensing the press. ... We should have gone after a shield law 30 years ago.''

Tim Crews, 61, who heads a staff of five at the Sacramento Valley Mirror, went to jail for five days in 2000 for contempt of court for refusing to identify the source behind stories about a California Highway Patrol officer accused of stealing a confiscated weapon.

While behind bars, he saw the movie "Matrix,'' "which my girlfriend didn't want to see in the theater,'' wrote a few stories and broke his no-carb diet, gaining 5 or 10 pounds. Mostly he worried about the financial well-being of his twice-weekly paper. "It was hardly a gulag,'' Crews says. "Five days you can do standing on your head. The principle is far more important -- whether journalists will stand up and do their jobs.

"What is going on now is a highfalutin', paper-chase plumbers' operation trying to stop leaks. We're not talking about a chilling effect, but a freezing effect -- every time a subpoena is issued, it turns up the freezer a few notches. It makes it that much harder for us to get information. It ripples through all the bureaucracy nationally. In the end it's not about the press. It's about public access.''

By Elizabeth Fernandez