Reporters without Borders is very concerned about the decision by the Supreme Court of the United States on June 27, 2005, not to hear the cases of Judith Miller, of The New York Times, and Matthew Cooper, of Time magazine, each sentenced by a federal court to 18 months in prison for refusing to reveal their information sources. The two journalists have no further judicial recourse and are now facing actual incarceration.
"By refusing to rule on the cases of Judith Miller and Matthew Cooper, the Supreme Court has just imposed a double reversal. First, against Judith Miller and Matthew Cooper, who now have no means of defending themselves and may find themselves in prison at any time simply for protecting their information sources. This retrograde and freedom-curtailing decision also foretells a defeat for all media and for the journalism profession, of which privileged communication is one of the essential foundations. At this stage of the proceedings, we urge the American judicial system not to impose harsh sentences on the two journalists. We also call upon the Congress to adopt, as soon as possible, the bills presented at the same time in the Senate and House of Representatives last February, which recognize the journalists' privilege to protect source confidentiality. It is the American people's right to be informed that is at stake," Reporters without Borders declared.
Judith Miller and Matthew Cooper had refused to reveal their information sources to a special chamber charged with investigating the information leaks that led to publication in the press of the identity of a CIA operative, Valerie Plame. In this case, the White House was suspected of having released Mrs. Plame's name in retaliation against her husband, Ambassador Joseph Wilson, who had publicly opposed President Bush's arguments in favor of the war in Iraq.
Judith Miller had investigated this matter on behalf of the New York Times, but had finally decided not to devote an article on it. In Time magazine's July 17, 2003 issue, Matthew Cooper had merely mentioned that "some government agents" had given Mrs. Plame's name to the press.
Tried for "contempt of court" for refusing to reveal their sources to law officials, the two journalists had been sentenced in the first instance by a Federal judge on July 20, 2004. The judge based his decision on a previous case law of the Supreme Court dating from 1972 (Branzburg vs Hayes), according to which source confidentiality is not protected under the First Amendment of the US Constitution. The journalists therefore could not use it in support of their court case. In order to ensure that Judith Miller and Matthew Cooper would comply, the judge had handed down incarceration orders the following October. Those orders were not carried out, as the two journalists had filed an appeal.
On February 15, 2005, the Federal Appeals Court in Washington, a three-juge panel had confirmed the federal court's ruling. The two journalists' lawyers had then obtained that this same appeal court meet in a grand jury session. On April 19, the convened grand jury had nevertheless upheld the sentences and the incarceration orders. In deciding to bring their case before the Supreme Court, the journalists had obtained a final continuance.
In refusing to make a ruling, the Supreme Court therefore decided to uphold its 1972 case-law. This status quo position poses a problem, because even though the journalists' privilege of source confidentiality is not recognized at the federal level, shield laws grant it to them in 31 states of the union, including Washington D.C. 49 states have some protection for this privilege. It was by virtue of a shield law in effect in New York state that Judith Miller obtained a favorable ruling on February 24, 2005, in a similar case involving source confidentiality.
From now on, it will be up to the legislators to fill this serious legal gap by introducing a federal shield law. On February 2, 2005, two members of the House of Representatives, Mike Pence (R-Ind) and Rick Boucher (D-Va.) introduced a bill entitled the "Free Flow of Information Act," which guaranties journalists an "absolute privilege" so they cannot be compelled to disclose their sources. The text provides that a journalist can be brought before a federal court only as a last resort. The text also provides for a "qualified privilege" extending to any notes, e-mails, negatives and any other professional documents, to which the federal courts may have access only if such evidence is deemed to be essential in a criminal case. A bill written in these same terms, co-sponsored by Richard Lugar (R-Ind.) and Christopher Dodd (D-Con.) was introduced to the Senate on February 9.
On April 28, 2005, during a joint press conference, the two representatives and two senators confirmed that their discussions on the subject of the Department of Justice and the White House had been "constructive." However, the Department of Justice refused to take a public position on these bills. The four congressmen are still trying to get them added to the agenda of their respective meeting sessions.
On May 18, Reporters without Borders joined other organizations in filing an amici curiae (an act of petition) before the Supreme Court in support of the two journalists.