Legal Commentary: D.C. Circuit Court affirms journalists' contempt citation, but gives journalists some hope.

Yesterday, the D.C. Circuit court issued its much anticipated opinion regarding the right of the press to protect confidentiality of their sources in a face of a grand jury investigation. In its opinion in In re Grand Jury Subpoena Cases, the Court affirmed contempt citations of journalists Matt Cooper and Judith Miller, but gave some indicators that reporters might have at least a qualified privilege not to reveal confidential sources in a face of a grand jury subpoena in a criminal case. Also, while I will leave the detailed prognosis on a possible Supreme Court decision to other sources, like Goldstein and Howe' s excellent Supreme Court weblog, I will go on record as predicting that Supreme Court would grant review, if requested. The opinion also does denigrate webloggers, though in a humorous manner.

For those readers unfamiliar with the background of this case, it arose out of a report by CNN's Bob Novak (see the opinion itself for a good discusion of the political background of the case). That report "outed" the identity of a CIA operative based on information from two unidentified senior administration officials. Subsequently, various other media outlets reported that other reporters had been told by government officials that the individual in question was indeed a CIA operative. Eventually, the Department of Justice appointed a special prosecutor to investigate the leak source. The special prosecutor began the investigation and had the grand jury issues subpoenas to journalists re: their anonymous administraton sources. The reporters refused to comply with the subpoena even after the federal district court denied their motion to quash, the district court found them in civil contempt, and the reporters appealed.

The D.C. Circuit's decision here takes on a Jekyl-and-Hyde approach when it comes to recognizing the fact that media IS different from ordinary citizens. The majority opinion is openly hostile to any claim by the reporters that they have a First Amendment right not to reveal their confidential sources even in a face of a grand jury subpoena in a criminal case. Not only does the majority conclude that such constitutional claim is foreclosed by the Supreme Court's prior decision in Branzburg v. Hayes, the majority repeatedly hammers home the point that "[the Supreme Court] declined to create another [privilege in grand jury proceedings] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy." Quoting Branzburg, the appellate court quipped that it could not "seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it."

Yet, in talking about a federal common law privilege, which federal courts are empowered to create without Congressional action, the judges seemed far more receptive to the notion that the media has a special place in our society and should have special rights. Even Judge Sentelle, who felt that the courts had no power to create the privilege for reporters, indicated that the Congress was free to create such a privilege. Both Judge Henderson and Judge Tatel recognized the courts' power to create that privilege. In fact, Judge Tatel's opinion actually recognizes a qualified privilege for the reporter to protect confidentiality of sources against a grand jury subpoena, though it readily conceeds that the privilege would have to yield to the government's need here to investigate the leak of a covert agent's identity. Finally, both Judge Henderson and Judge Tatel clearly recognize the special role of the press in sustaining our form of government.

Yesterday, someone commented on the NPR's morning edition that this decision makes the journalists' work more difficult. I would disagree. Assuming the D.C. Circuit is more or less accurate in describing Branzburg, the protection of confidentiality of anonymous sources in a face of a grand jury subpoena is no less today than it was before the decision. More importantly, at least two judges are now on the record that the press has a very important role in the government and should have certain special rights. It remains to be seen what the Supreme Court does with this case, which would give it a good opportunity to revisit Branzburg.

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D.C. Circuit Court affirms journalists' contempt citation, but gives journalists some hope.

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