By: Joe Strupp
Attorney Floyd Abrams, who is representing Judith Miller of The New York Times and Matthew Cooper of Time magazine in the Valerie Plame case, will seek a re-hearing of an appeals court ruling last month that upheld an order for the two reporters to be jailed if they continue refusing to disclose sources in the case.
Abrams said the appeal would be filed by mail with the District of Columbia Circuit Court of Appeals. A three-judge panel of that court ruled on Feb. 15 that a lower court order finding Miller and Cooper in contempt should stand. The lower court ruling, an October decision from Judge Thomas Hogan of the Federal District Court in Washington, found the reporters in contempt for refusing to disclose who leaked the identity of CIA Agent Valeria Plame to them.
“We are filing this evening a motion seeking a re-hearing from the entire court of appeals,” Abrams told E&P. “Three people decided it last time and we are now going to the entire eight-person court.”
Miller and Cooper were also ordered jailed by the lower court, but the order was set aside pending time for an appeal. Abrams said he had 45 days to appeal.
“We are arguing that the three-judge panel erred in [saying] there was no First Amendment protection for these journalists,” Abrams said. “They also erred in concluding that there was no federal common law protection. Since 49 states provide protection, the federal courts should adopt a similar rule.”
Abrams noted that although only 39 states have shield laws, 18 others have court precedents providing such protections. He contends the only state without either is Wyoming.
He also said the appeals panel was in violation of due process by not allowing the reporters and their lawyers to see the government’s briefs “that set forth why the government has met the balancing test.”
“It’s not that unusual,” Abrams said of the appeal. “It’s not as if the court routinely grants such a request — but we are taking every step available to us.”