T he First Amendment is Americans’ pre-
cious protection of the rights to freedom
of press, assembly, speech, petition and religion.
But government ever is testing the boundaries of what it can restrict, as is evident in the federal investigation into who in the Bush administration in 2003 revealed to members of the media that Valerie Plame was a CIA agent. She is the wife of Joseph Wilson, the former ambassador to Niger.
On Monday, U.S. District Court Chief Judge Thomas F. Hogan held Time magazine reporter Matthew Cooper in contempt of court “for failing to reveal sources who disclosed that Plame was an undercover CIA officer,” reported Editor & Publisher magazine. “In addition, Walter Pincus, a reporter for The Washington Post, received a subpoena Monday ordering him to testify in the investigation …. Other newspaper reporters are expected to receive subpoenas soon.”
Some states have a “shield law” that protects journalists from revealing their confidential sources. But the federal government has no such law; however, its lawyers cannot go first to journalists for information in prosecuting a case.
The case of journalists in the Plame situation probably “will go the U.S. Supreme Court” for a decision, Terry Francke said; he’s the former general counsel of the California First Amendment Coalition and head of Californians Aware, a new open-government organization.
“Based on everything I’ve seen,” Francke said, “I doubt that the Supreme Court is going to modify its approach from the last time around. When a journalist is a witness to a crime, or has evidence, the First Amendment is not a protection to a journalist having to give testimony before a grand jury, as shown in a couple of cases in the 1970s. I would not be optimistic that this court would be more flexible than was the court in the 1970s.”
Editors most often agree to withhold a name when the value of what the source has to say is extremely important, and the source’s livelihood, or even life, would be in jeopardy if the source were named. It is an agreement not lightly made.
We believe the words beginning the First Amendment, “Congress shall make no law … ,” should be taken literally with regard to the press and other freedoms there enumerated. Even though it seems unlikely, we still hope the Supreme Court reverses its action in the 1970s and restores to journalists the right to keep secret those sources that are promised anonymity. And Congress should pass a federal shield law.
This isn’t just a parochial matter for those in our industry. If sources cannot be kept confidential, those sources will clam up in the future and government will be able to be even more secretive. An open society demands that any balance between openness and government investigatory power must be decided in favor of openness.
For an alternative, one need only look at Russia in recent years, where the formerly wild and open press of the Yeltsin era has been muzzled under the regime of Vladimir Putin, a former KGB officer.
As Thomas Jefferson so wisely wrote, “Our liberty cannot be guarded but by the freedom of the press, nor that be limited without danger of losing it.”