First Amendment and Open Government News
CFAC
534 Fourth Street, Suite B
San Rafael, CA 94901
Ph: (415) 460-5060 Fax: (415) 460-5155

First Amendment and open government news

Vol. 15, No. 13, June 17, 2005

-----------------
COMMENTARY
-----------------

Prospects brighten for pro-press Supreme Court decision in Miller-Cooper case involving subpoenas for confidential sources
By Peter Scheer

LINK

The Supreme Court will soon decide whether to reconsider, in the case involving New York Times reporter Judith Miller and Time Magazine reporter Charles Cooper, whether journalists can be forced by federal judges to reveal confidential sources. The odds that the Court will both take the case and spare Miller and Cooper their jail sentences are, at this stage, surprisingly good.

What's changed?

In the Supreme Court, the case has been strategically re-positioned. In their briefs requesting Supreme Court review, Miller's lawyer (Floyd Abrams of NY's Cahill, Gordon) and Cooper's lawyer (Miguel Estrada of LA's Gibson, Dunn & Crutcher) have changed the focus of the case from an argument primarily about the First Amendment--specifically, whether the constitution requires recognition of a "reporter's privilege"-- to an argument about rules of evidence in federal courts.

Although the First Amendment claims rejected in the trial court and the appeals court are still asserted, the latest briefs are a subtle invitation to a conservative Supreme Court to view the issue of protecting confidential sources as one requiring, not a landmark reinterpretation of First Amendment limits on federal power, but adjustments to judicial rules that are badly in need of a tune-up. This shift in emphasis is especially clear in Cooper's brief.

Privileges in federal court are governed by a Congressionally-enacted rule of evidence, Rule 501, which, rather than prescribing a complete list of privileges (attorney-client, priest-penitent, etc.), explicitly acknowledges the authority of federal courts, exercising their power to make federal "common law," to adopt new privileges when needed.

In a key 1996 case, Jaffee v. Redmond, the Supreme Court, relying on Rule 501, established the psychotherapist-patient privilege in federal proceedings. Since then, lower federal courts have interpreted Rule 501 as authorizing the spousal privilege, a privilege for settlement discussions, and others.

If Rule 501 gives therapists a privilege to refuse to reveal confidential communications with a patient, it should also give journalists a privilege to refuse to name confidential sources. So goes the argument for a "common law" journalist's privilege--and it is a strong one.

Moreover, the media's position is strengthened by a separate brief filed by the attorneys general of 36 states (including California), all of which have protection for confidential sources in state Shield Laws or court decisions. The AGs point out that their reporter's privileges are undermined by the absence of a federal privilege because neither journalists nor sources can ever know, in advance, whether a demand for testimony will issue from a state or federal court.

Following the lower courts' drubbing of Miller and Cooper's claims, many First Amendment advocates, myself included, dreaded the prospect of Supreme Court review of this case, and hoped, despite the obvious hardship facing the reporters, that the Supreme Court would deny review. Now, however, there is reason to be optimistic.