WASHINGTON, Feb. 15 (UPI) -- A federal appeals court panel in Washington Tuesday ruled journalists have no First Amendment privilege to protect the identity of confidential sources.
The controversial decision, which relies on a Supreme Court precedent more than three decades old, will profoundly affect how news is gathered in the nation's capital, where for some reporters using confidential sources has become a way of life.
At the same time the three-judge appeals court panel also upheld a trial judge's order holding an investigative reporter for The New York Times and the White House reporter for Time magazine and Time Inc. in contempt of court.
There was no immediate word on whether the reporters or the publishers will ask the full U.S. Circuit Court of Appeals for the District of Columbia for a new hearing, or the Supreme Court for ultimate review.
The journalists had argued that they needed to keep their sources confidential in order to do their jobs.
The judge issued the contempt citations at the request of special counsel Patrick Fitzgerald, the U.S. attorney in Chicago who has been charged by the Justice Department to investigate alleged executive-branch leaks in Washington that revealed the identity of covert CIA official Valerie Plame.
Plame's husband, former ambassador Joseph Wilson, said his wife was "outed" by officials because he publicly took issue with President George W. Bush's pre-war claim that Iraq was seeking nuclear material in Africa.
Fitzgerald is trying to get the reporters, who now face jail time, to reveal confidential sources to a grand jury.
The appeals court panel disagreed as to whether there is a "common law" protection for sources -- one built up over time through practice and court rulings.
One judge said there was no such common law privilege; another said there was, and the third judge said there was no need to decide whether there was or not.
But all three agreed that even if such a common-law privilege existed, it did not apply to the present case or any case in which grand jury subpoenas are involved.
The controversy arose "over a 16-word sentence in the State of the Union Address of President George W. Bush on Jan. 20, 2003," the appeals court opinion said: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
Bush was using the allegation to support a contention that the Iraqi government had, or was seeking, weapons of mass destruction, including nuclear weapons. The contention was used as one of the underpinnings of the U.S.-led invasion of Iraq, which began that March.
Bush's statement evoked much media comment, the court said, including a July 2003 op-ed piece in The New York Times by Wilson. In the article former ambassador Wilson said he had been dispatched earlier by the CIA to Niger to investigate claims that Iraq was seeking uranium and found "no credible evidence" that it was.
Eight days later columnist Robert Novak wrote in the Chicago Sun-Times that the decision to send Wilson to Africa was made without CIA Director George Tenet's knowledge and that "two senior administration officials" had told him the former ambassador was selected only at the suggestion of Wilson's wife, Valerie Plame, whom Novak described as a CIA "operative on weapons of mass destruction."
In other media reports other journalists also said they were approached by government officials with the same account -- the purpose of which appeared to be to lessen the impact of Wilson's criticism.
Wilson himself claimed the leaks were administration retaliation for his op-ed piece.
Other journalists and some Democrats speculated that the leaks might be a crime. It is a felony for a government employee to use classified information to reveal the name of a covert intelligence official or asset.
Fitzgerald, as special counsel, convened a grand jury and began issuing subpoenas to reporters. Some reporters have testified after being given permission from their confidential government source. Others, such as Time's Matthew Cooper and Judith Miller of The New York Times, refused. Time Inc. also refused a subpoena for documents in the investigation.
At Fitzgerald's request all three were held in contempt of court. Time Inc. was facing civil penalties, and the two reporters were facing jail time until they appealed.
The appeals court panel Tuesday largely rejected their arguments based on a 1972 Supreme Court precedent, Branzburg vs. Hayes.
Branzburg combined the cases of several reporters who had refused to disclose confidential sources.
A 5-4 Supreme Court majority ruled that the "First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof."
The late Justice Byron White, who wrote the majority opinion, acknowledged the reporters' argument that if "forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment."
White said, "We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated."
But the cases involving confidential sources "involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. ... The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from ... any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request."
White said the "sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime."
The appeals court panel, in Tuesday's opinion, particularly cited one section of White's opinion in which he said the narrow Supreme Court majority "cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future."
(Please send comments to firstname.lastname@example.org.)