Sulzberger, Miller, and Time Inc. Respond to Supreme Court Setback

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By: E&P Staff

In a statement issued this morning following the U.S. Supreme Court decision not to hear the appeal of Matthew Cooper (of Time magazine) and Judith Miller (of The New York Times) in the Plame/CIA case, Arthur Sulzberger Jr., chairman of The New York Times Company and publisher of The New York Times, wrote: “It is shocking that for doing some routine newsgathering on an important public issue, keeping her word to her sources, and without our even publishing a story about the CIA agent, Judy finds herself facing a prison sentence.

“That 49 states and many countries around the globe provide broad protection for journalists who have promised confidentiality to their sources, makes today?s decision even more disappointing. And it is doubly painful that the Court rejected our case in the face of the plea of 34 state attorneys general, prosecutors who normally seek journalists? evidence, that anonymous sources are critical to provide information to the public.?

In another statement, Judith Miller said, ?I am extremely disappointed. Journalists simply cannot do their jobs without being able to commit to sources that they won?t be identified. Such protection is critical to the free flow of information in a democracy.”

A Time, Inc. statement read: “We are disappointed that the Supreme Court declined to hear the important issues presented by Matthew Cooper and Time Inc. v. United States of America.

“It is important to know whether the First Amendment and the federal common law provide protection for journalists? confidential sources, as do the laws of 49 states and the District of Columbia.

“We and Matt Cooper shall now seek a prompt hearing from the federal district court that first held us in civil contempt. We shall ask Chief Judge Thomas F. Hogan to “reassess the privilege issues. We believe that changes in the status of the Special Prosecutor?s investigation and intervening guidance from the Court of Appeals on evidentiary privileges under federal common law merit such a reassessment.

“Statements from the Special Counsel?s office suggest his investigation has changed substantially since last summer, when he presented secret evidence to the district court. There is reason to believe, for example, that the Special Counsel may have determined that disclosure of Valerie Plame?s identity to Robert Novak did not violate the Intelligence Identities Protection Act. If that is correct, his desire to know the sources for a subsequent article by Mr. Cooper and others, that appeared on, may be solely related to an investigation into whether witnesses made false statements during the course of his investigation into this non-crime. Such an investigation of obstruction of justice or perjury may not rise to the level that justifies disclosure of information from or about a reporter?s confidential sources under federal common law.

“Under these circumstances, where the facts appear to have changed and where the appeals court has since elaborated on a reporter?s privilege under common law, Time Inc. and Matt Cooper will ask the District Court to review and reassess its orders.

“We think it premature for Time Inc. and Matt Cooper to articulate final positions until Judge Hogan has ruled on our request for review and reassessment.”

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