The Loud Fight Over Reporters’ Silence

In the federal courthouse in Washington on Thursday, lawyers will try to keep two reporters out of jail. A Justice Department special counsel is trying to find the source or sources who in 2003 leaked to the media Valerie Plame’s CIA connection, a potential felony. For refusing to testify fully about their confidential sources, a federal district judge has ordered the imprisonment of Matthew Cooper of Time magazine (who wrote about the Plame leak) and Judith Miller of the New York Times (who didn’t). Their attorneys will urge the appellate court to overturn the ruling.

The conflict -- government officials demanding the names of confidential sources and reporters refusing to comply -- is an American classic. And if Cooper and Miller lose their appeal, expect events to unfold according to a scenario that’s been sacrosanct for at least 150 years. The two reporters will continue to refuse to testify about confidential sources. Keeping such secrets, they’ll say, is a fundamental duty of journalism.

“It has been the practice of our profession not to disclose the names of persons furnishing information ... for nearly a century,” the New York Tribune’s H.J. Ramsdell told the Senate back in 1871, refusing to reveal how he had gotten his hands on a secret treaty with Britain. The Los Angeles Times observed in 1897 that if a reporter “does disclose the source of his information he is disgraced professionally, and if he does not, he is sent to jail.”

Aren’t there limits to this journalistic duty? Ramsdell said he could talk only if “released from my promise” by the source -- and some reporters have testified in the Plame investigation when sources have given waivers. Absent a waiver, reporters occasionally maintain that they must keep silent though the heavens fall. In 1857, James Simonton of the New York Times said that even if a confidential source disclosed plans to blow up the U.S. Treasury, he would be obliged to keep the person’s identity secret. Floyd Abrams, the lawyer representing Miller and Cooper, wouldn’t extend the principle that far, but he does maintain that “the law can’t distinguish between good leaks and bad.”

Next, unless the government backs down, comes incarceration. Held for contempt of Congress in 1848 over leaks related to a treaty with Mexico, New York Herald reporter John Nugent spent his days in an empty committee room and his nights at the home of the Senate’s sergeant-at-arms. Nugent continued writing articles, puckishly datelined “Custody of the Sergeant-at-Arms.”

Miller and Cooper won’t be staying at anybody’s home, but they can expect leniency of another sort. Uncooperative witnesses in federal grand jury investigations can be jailed for up to 18 months, but 5 1/2 months appears to be the record for an American journalist. That’s the term served by freelancer Vanessa Leggett, imprisoned in 2001 and early 2002 for refusing to testify in a Houston murder investigation. Of the 18 journalists incarcerated between 1984 and 2000, according to a list compiled by the Reporters Committee for Freedom of the Press, none was behind bars for more than three weeks, and nine were freed within a day.

It’s scant compensation for the loss of freedom, but Miller and Cooper can anticipate near-unanimous support from the rest of the media. When a Baltimore reporter was jailed for refusing to identify a confidential source in 1886, the New York Times gushed, “His popularity has been trebled by his manliness in this matter.” Miller has been excoriated by colleagues for being gullible about the presence of weapons of mass destruction during the run-up to the Iraq war; those critics are quiet now.

Sometimes a source comes forward and confesses. “If the House must have a victim ... I offer myself,” said Rep. John Smilie in 1812, taking the blame for disclosures about trade policy; the House then proceeded to release an editor, Nathaniel Rounsavell, from custody. More often, the identity of the source remains secret. As the New York Times said in 1871, when Ramsdell was freed: “It would appear that all is known about the premature publication of the treaty that will be known.”

Even so, the familiar clash between government and media isn’t just an empty ritual. Beneath their obstinacy, each side is seeking to vindicate a duty to seek the truth. And each side is adamant about its high motives: An uncooperative witness is an affront to “the rights and dignity of the House, and consequently of the people of the United States,” Rep. Henry Ridgely declared in 1812. “This is really all about the readers,” Miller said of her case in an interview with the New York Observer. “This is all about the public -- the public’s right to know.”

The adversaries in these recurrent conflicts, it turns out, have a lot in common.