Tuesday, July 05, 2005

Journalist Privilege and the Valerie Plame Case

Daniel Solove

Almost lost amid the Supreme Court fireworks last week was its decision to deny certiorari on a challenge by two reporters to a grand jury subpoena for the identity of White House sources.

The imbroglio began back in 2003, when former Ambassador Joseph Wilson disputed White House claims about weapons of mass destruction in Iraq. How outrageous! To retaliate, some White House officials leaked to several reporters the fact that his wife, Valerie Plame, was a CIA agent, blowing her cover. Among the journalists receiving the information was the conservative pundit Robert Novak as well as Time Magazine reporter Matthew Cooper and New York Times reporter Judith Miller.

Leaking the identity of a CIA agent is a crime, and a grand jury was convened to investigate. It subpoenaed from the reporters the identities of their sources.

Cooper and Miller refused to comply with the subpoenas. District Court Judge Thomas Hogan ordered that the reporters comply or else face jail time for contempt. (It is unclear what happened regarding Novak – either he divulged his sources or for some reason he’s not being pressed for the information.)

When the Supreme Court denied cert. on the case, Time Magazine announced that against the wishes of Cooper, it would turn over his notes. Time was criticized by the media for caving in.

Should the journalists be required hand over the notes? Doctrinally, the issue appears to be yes. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. In spite of the Court’s ruling, the journalist privilege has still thrived. Lower courts have adopted a qualified privilege, one that is balanced out on a case-by-case basis. Despite this, however, with grand jury subpoenas, most courts require journalists to disclose.

As a policy matter, the question is more complicated in my opinion. First Amendment scholar and Chicago law professor Geoffrey Stone argues although that Congress should pass a statute providing for a journalistic privilege, it shouldn’t apply in this case:

But even if Congress did this, such legislation would afford no succor to Judith Miller and Matt Cooper. . . .

The purpose of the reporter-source privilege is to encourage sources to disclose information of legitimate public concern to reporters so they can then inform the public. There is no public policy of encouraging sources to leak information when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.

The disclosure of Valerie Plame's identity as a CIA operative by White House offcials violated federal law. In "leaking" this information, those officials were attempting to enlist reporters in a criminal act. Even under the most expansive conception of the journalist-source privilege, those sources have no privilege to do that, and thus Miller and Cooper are protecting no one but themselves. They are not Woodward and Bernstein.
I agree with a lot of what Stone says, but diverge on one point. His law would not apply “when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.” I believe that this approach is too broad. Many valuable leaks by government officials are criminal acts . . . the Pentagon Papers, for example.

Stone speaks favorably of the Pentagon Papers case in his book Perilous Times. He writes: “The publication of the Pentagon Papers was a major event in the history of American journalism.” (p.512). The Pentagon Papers Supreme Court decision is not really relevant here, as it involved a prior restraint on a newspaper printing the information; in contrast, the Plame case involves an after-the-fact probe into the sources. But the Pentagon Papers case provides a good example of the kinds of leaks we want to promote.

In the Pentagon Papers case, Daniel Ellsberg was indicted on felony charges. Stone agrees that Ellsberg should be punished: “The law against theft can constitutionally be applied to the person who steals a camera to make a movie. If the would-be moviemaker can be punished, shouldn’t Ellsberg and Russo be punishable as well?” (p.515).

I believe that if an Ellsberg leaks Pentagon Papers anonymously, journalists should not be forced to divulge his identity – even though Ellsberg is committing a crime. The test should be whether disclosure is in the public interest. Applying the “criminal act” test gives the government too much power to chill whistleblowers. After all, the government can just criminalize leaking or enhance the penalties and then ferret out the leakers by forcing journalists to reveal the names. The better approach, in my opinion, is a public interest test not tied to whether the leaking is a crime.

A public interest approach can best separate the Pentagon Papers from the Plame disclosure. The leaking of the Pentagon Papers was in the public interest. But the Plame disclosure was not. It had no redeeming social value – instead, the leak was just a retaliatory act. Therefore, the sources should not be protected.


I take it your theory is that judges will decide what is in the public interest, since the executive branch is not likely to prosecute leaks that it considers in the public interest. What makes you think judges are well-suited to this task?

Consider a concrete example: the German saboteurs arrested and executed in WWII. They were in fact captured only because some of them turned themselves in, but J. Edgar Hoover suppressed this information so as to give the impression that the FBI had been clever enough to catch the men. Would publicizing the truth have been in the public interest? Who knows? Isn't it better that FDR made this decision than some federal judge?

Good pt. though I think this suggests the importance of an open process -- such information should have been out there, since it had directly relevance to the fate of the saboteurs.

The public interest test would eviscerate the ability of the government to classify and keep secret most documents. Wasn't it in the public interest to know that there were no wmd's in Iraq? Certainly there are many more secrets in which public disclosure outweighs secrecy. Unfortunately, it would not be possible to administer military and covert government programs if classified government employees could hide behind a journalist privilege.

In this case, everything suggests that journalists are rightly upholding the honor of their profession and are being attacked probably for purely political reasons. However, there is no public policy that justifies a privilege here. The root of the problem lies in the executive privilege, not a journalist's privilege.

As for the Pentagon papers, rather than craft a legal rule, can we admit that there are exceedingly rare illegal acts that can be justified on other terms?

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Yahoo News - Oct. 13, 2005

Yahoo Japan steps up mobile content distribution (Reuters via Yahoo! News)
Yahoo Japan Corp. said on Thursday it had launched a mobile content distribution service, in which cellphone users can buy games, ring tones, news and other entertainment and information from 59 content providers.

Microsoft, Yahoo to link instant messages ( via Yahoo! News)
Microsoft and Yahoo will make their instant-messaging programs work together, a partnership that could give the companies more power to compete against market leader America Online. The companies expect the service to start by June 2006.

Yahoo to Bar Minor-Adult Sex Chat Rooms (Washington Post)
NEW YORK -- Yahoo Inc. said Wednesday it will bar chat rooms that promote sex between minors and adults and restrict all chat rooms to users 18 and older.

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