Tuesday, August 10, 2004

In Contempt

The Valerie Plame investigation seems to be heating up. U.S. District Chief Judge Thomas F. Hogan has ordered Time's Matthew Cooper held until he spills the beans. This suggests that the case is getting to the end of the line. The existing precedents on journalists' privilege state that there is no absolute first amendment right to the confidentiality of sources, but there is a strong presumption in favor of them. Essentially, the Branzberg v. Hayes precedent means that the state has to exhaust all other investigative means--the fact that they're threatening to lock up journalists means that they've basically done all they can without having the journalists involved (who, of course, know the answer everyone's looking for) say what they know.

This is the rare Supreme Court precedent that actually makes sense to me, and where some sort of balancing test is actually necessary. Obviously there is an important First Amendment issue here, but the core of the First Amendment is the right to publish without prior restraint and without being locked up for the content of your reporting. No one is saying that reporting Ms. Plame's name should have been a crime (although there's a good argument that it was unethical). But in this case we have a journalist who knows the identity of a felon, and is unwilling to reveal it, even after all other prosecutorial means have been exhausted to identify that person. Essentially what the journalists in this case are seeking is not just a certain hesitancy on the part of the judicial system, but a complete pass on what would otherwise be a clear-cut obligation of citizens.

This is a case that the Supreme Court probably should take, and use the opportunity to lay out an even more specific version of the Branzberg test, so that both journalists and sources know where they stand. But then courts need to start enforcing this test, and in this case specifically. Sadly, the appeal probably means that the identity of the Plame leaker will not come out until after the election, which is a shame--if it was indeed a senior official, the public deserves to know the kind of ball that the Bush White House is willing to play to advance their interests.

And by the way, why isn't Robert Novak being threatened with prison as well? Is this a sign that he's cooperating with the prosecutors?

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