A Fragile Privilege   

May journalists refuse to turn over notes and reveal their sources to the courts?

It was no surprise when columnist Robert Novak swore that he would never reveal who had leaked him the name of CIA employee Valerie Plame. Many reporters would agree that ethics, or pragmatism, or both require them to protect confidential sources at all costs. Ask most journalists how they would respond if a court ordered them to testify, and they would say, "I'll go to jail first."

But those defiant statements have been uttered with the comfortable assurance that relatively few reporters spend any time in prison for refusing to break their promises to sources. Thirty-one states and the District of Columbia have journalists' shield laws. And many reporters assume that the First Amendment provides a powerful weapon to fight any attempt to undermine the news media's independence by forcing them to turn state's evidence.

Well, maybe. Of course, the last time the U.S. Supreme Court considered the question, in its 1972 ruling in Branzburg vs. Hayes, it ruled against the journalists, who had actually witnessed criminal activity. Some courts, however, have interpreted that decision as recognizing a qualified constitutional privilege in other situations. But in August, the 7th U.S. Circuit Court of Appeals in Chicago questioned whether such a privilege exists.

The case involved subpoenas served on several journalists who were working on a biography of David Rupert, an FBI informant. Michael McKevitt, head of an Irish Republican Army offshoot called the Real IRA, persuaded a federal district court in Illinois to compel the reporters to provide tape recordings of their interviews with Rupert. McKevitt said he needed them for use in his defense to the prosecution he faced in Ireland for the crime of "directing terrorism."

The reporters appealed, but the appeals court upheld the trial judge's order. The unanimous panel opinion by Judge Richard A. Posner concluded that "no conceivable interest in confidentiality" existed in the case, because Rupert was identified as the journalists' source and did not object to the disclosure of the tapes. Under the rules of evidence, the Illinois reporters' shield law would not apply in this federal case, Posner decided. And although he acknowledged that some federal courts have recognized a common-law privilege, while others "audaciously declare" that Branzburg creates protection even for nonconfidential sources, Posner was skeptical. "We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist," he wrote.

Two months later, U.S. District Judge Thomas Penfield Jackson came to the same conclusion. He ruled that Los Alamos scientist Wen Ho Lee--who says that federal employees violated the Privacy Act when they leaked personal information about him to the media during the government's espionage investigation--had the right to force five journalists to identify their confidential sources. Echoing Posner, Jackson decided that the local shield law--in this case, the District of Columbia's--did not apply in the federal case.

Although he conceded that the D.C. Circuit had held in 1981 that Branzburg created at least a limited privilege protecting confidential sources and requiring a plaintiff to exhaust every reasonable alternative source before subpoenaing a reporter, Jackson noted that Lee had already taken more than 20 depositions of possible sources. The Circuit, he contended, "does not require proof positive that the knowledge exists nowhere else on earth but in the minds of the journalists and their anonymous confidants."

Significantly, after quoting Justice Byron White's majority opinion in Branzburg, Jackson confessed that he had "some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel" who break the law, especially by disclosing information to which reporters have no right. "It does not detract from the importance of the First Amendment principle at stake," he wrote, to find that the media's interest in withholding evidence of possible federal law violations does not outweigh Lee's interest in obtaining information he says he needs for his lawsuit.

It is hard to predict what the D.C. Circuit will do with the case on appeal. If it affirms, it could mean that a journalist like Novak would have no privilege to invoke if he were subpoenaed in D.C. federal court and asked to reveal the name of his source for classified information leaked in violation of the Intelligence Identities Protection Act of 1982. If it reverses, the Supreme Court might, at long last, be induced to settle the question, once and for all.