By Freedom Newspapers
It’s encouraging that the investigation into who leaked CIA agent Valerie Plame’s name to the media is proceeding, even if at a snail’s pace. It’s discouraging that two reporters, Matthew Cooper of Time magazine and Judith Miller of The New York Times, face the possibility of jail if they don’t reveal their sources in connection with that investigation. And it isn’t entirely clear whether the First Amendment gives them and other reporters the right under law to protect the identities of their sources that they are claiming.
The issue goes back to July 2003, when former diplomat Joseph Wilson, who had been sent to Niger to check out the administration’s claims about Saddam seeking nuclear materials in Africa, wrote a piece disputing the 16 words in President Bush’s 2003 State of the Union message raising the issue. Somebody leaked the possibility that Wilson’s wife, Valerie Plame, who was a CIA operative, had recommended him for the mission, to columnist Robert Novak and apparently to others. Disclosing the identity of a clandestine intelligence agency operative can be a crime, depending on the circumstances.
Cooper and Miller (who did not write a story on the case) have declined to tell a grand jury who leaked Plame’s identity to them. This raises the question of whether protection of the identity of confidential sources is part of the First Amendment.
The amendment says “Congress shall make no law … abridging the freedom of speech, or of the press.” Does requiring a reporter to tell a grand jury about confidential sources abridge the freedom of the press? You could argue that it does, and some states have passed “shield laws” to protect reporters from having to reveal sources. But federal courts have generally ruled that legal procedures take precedence and require reporters to testify honestly before a duly constituted grand jury. Last week, the First Circuit Court of Appeals upheld a lower-court decision to hold the reporters in contempt for refusing to reveal their sources to a grand jury.
It’s a tough issue. There are some stories, especially about government corruption, that would never be told if reporters could not get sources to open up on a confidential basis. If they have promised confidentiality to such a source (which sometimes can be important to the source’s personal safety), they have a moral obligation to keep their promise.
On the other hand, the use of confidential sources, especially in Washington, has gone well beyond good journalism. People in government always leak, often to serve a personal or political agenda, and using too many confidential sources often does not serve the reader, who is left to guess about the motives of the anonymous source.
Confidential sources can be overused or abused, then, but they can also be important to the media function of being a watchdog on public and private corruption. Does protecting them rise to the level of a constitutional right? The case can be made for a more expansive interpretation of the First Amendment.
We’re glad the two reporters’ employers are backing them in this case.