Attorneys general to push Supreme Court on 'reporter's privilege'
At least 34 state attorneys general, including Utah's Mark Shurtleff, are expected to file a brief today urging the U.S. Supreme Court to recognize a "reporter's privilege" to keep sources confidential.
The friend-of-the-court brief supports the legal appeal of reporters from The New York Times and Time magazine who were found in civil contempt last fall for not revealing the names of confidential sources who identified a covert CIA agent.
"If you don't have the privilege in place, people won't talk to reporters, and the public's right to know and be informed will be impacted negatively," Shurtleff said. "I believe in the importance of the press in a free society."
A reporter's privilege is recognized in 49 states and the District of Columbia. Only Wyoming has not addressed the issue. Utah has no formal law on the books, but Utah courts have recognized the privilege, creating "common law."
Federal district courts have issued contradictory rulings on what the shield law means. The appeal seeks to answer three questions: Does the First Amendment protect journalists from revealing sources in federal criminal cases? Should a federal privilege be created to protect journalists? And, is it fair to imprison journalists without allowing them to look at the government's evidence supporting its need to know the identity of their sources?
If the Supreme Court rules against a shield law, it could create a chilling effect among reporters, according to attorney Michael O'Brien, who regularly represents The Salt Lake Tribune.
"Journalists will be wary of reporting on the events that shape all our lives if, as a result, they are dragged into court and pumped for information about their investigations," O'Brien said. "Some Utah courts have recognized this important protection for reporters, but many more will if the Supreme Court tells them to do so."
The brief, which is also supported by the attorneys general from the District of Columbia and the U.S. Virgin Islands, requests the Supreme Court take the case and create a "balancing test." The test would require courts to weigh a reporter's ability to gather news against the need to disclose unnamed sources. The earliest the court could hear the case is this fall.
Utah's courts have applied a balancing test, requiring people seeking information from the press through a subpoena to show the information is "especially relevant" and "that they have tried and failed to get it elsewhere," O'Brien said.
A balancing test would still fall below the standard supported by reporter Judith Miller and The New York Times. Miller and Time reporter Matthew Cooper argue the First Amendment unequivocally protects their right to conceal the identity of a source, even against grand jury requests.
Appellate courts rejected that argument and ordered Miller and Cooper to serve 18 months in jail for refusing to cooperate. Miller never reported that Valerie Plame was a CIA operative, though government sources leaked the information to her and other reporters, ostensibly to damage the credibility of her husband, former Ambassador Joseph Wilson. Wilson was critical of the administration's claims about Iraq's programs to develop weapons of mass destruction.