Excerpts from the Court of Appeals Decisions on Miller and Cooper

By: E&P Staff In today's ruling on the appeal of contempt citations for Judith Miller and Matthew Cooper, the three-judge panel of the Court of Appeals issued four opinions. Judge David B. Sentelle filed an opinion for the court, and each of the three judges -- including Sentelle -- filed his or her own concurring opinion.

Judge David S. Tatel, in his opinion, addressed head-on the often-raised point that Miller never even wrote about the Valerie Plame leaks, and Cooper only wrote about them after Robert Novak had revealed her as a CIA agent, in a piece that raised questions about the leaks. But not publishing doesn't protect the reporters, Tatel wrote. "In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crimem," the judge wrote. "The greater public interest lies in preventing the leak to begin with."

And Sentelle, in his concurring opinion, argued for the impossibility of allowing a sort of reportorial privilege because of the difficulty in determining who exactly is a reporter. He quoted the Supreme Court's landmark 1972 Branzburg decision on this point, then went on to note that's become even more difficult in the intervening three decades to define who is a reporter. "Perhaps more to the point today," Sentelle asked, "does the privilege also protect the proprietor of a web log: the stereotypical ?blogger? sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way?" He then looked at how various states have statutorily defined "reporters" entitled to privilege.

Here are excerpts.

Judge David S. Tatel, concurring opinion

One last point. In concluding that no privilege applies in this case, I have assigned no importance to the fact that neither Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue, revealed Plame?s employment, though Cooper wrote about it after Novak?s column appeared. Contrary to the reporters? view, this apparent self-restraint spares Miller and Cooper no obligation to testify. Narrowly drawn limitations on the public?s right to evidence, testimonial privileges apply ?only where necessary to achieve [their] purpose,? Fisher v. United States, 425 U.S. 391, 403 (1976), and in this case the privilege?s purpose is to promote dissemination of useful information. It thus makes no difference how these reporters responded to the information they received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffee suggested would not be privileged, see 518 U.S. at 18 n.19). In all such cases, because the communication is unworthy of protection, recipients? reactions are irrelevant to whether their testimony may be compelled in an investigation of the source.

Indeed, Cooper?s own Time.com article illustrates this point. True, his story revealed a suspicious confluence of leaks, contributing to the outcry that led to this investigation. Yet the article had that effect precisely because the leaked information -- Plame?s covert status -- lacked significant news value. In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime. The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leaks -- say, from a whistleblower who revealed the plot against Wilson -- the situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Plame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires.

Judge David B. Sentelle, concurring opinion:

The Supreme Court itself in Branzburg noted the difficult and vexing nature of this question, observing that applying such privilege would make it "necessary to define those categories of newsmen who qualify for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."

408 U.S. at 704. The Supreme Court went on to observe that ?freedom of the press is a ?fundamental personal right ... not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. ... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.?? Id. (quoting Lovell v. Griffin, 304 U.S. 444, 450, 452 (1938)). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical ?blogger? sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court?s vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?

The state legislatures have dealt with this vexing question of entitlement to the privilege in a variety of ways. Some are quite restrictive. Alabama limits its protection to ?person[s] engaged in, connected with, or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity.? ALA. CODE ? 12-21-142. Alaska?s statutes protect only the ?reporter,? a category limited to ?person[s] regularly engaged in the business of collecting or writing news for publication or presentation to the public, through a news organization.? ALASKA STAT. ? 09.25.300. The statutory privilege in Arizona protects ?a person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper or radio or television station. ...? ARIZ. REV. STAT. ? 12-2237. Arkansas?s legislature has declared the privilege applicable to ?any editor, reporter, or other writer for any newspaper, periodical, or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station. ...? ARK. CODE ANN. ? 16-85-510. Delaware is perhaps the most specific, protecting a ?reporter,? which means "any journalist, scholar, educator, polemicist, or other individual who either: (a) At the time he or she obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or (b) Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a."

DEL. CODE ANN. tit. 10 ? 4320. Presumably, states such as these would provide the privilege only to the ?established? press.

Others are quite inclusive. The Nebraska legislature, for example, has declared:

"(1) That the policy of the State of Nebraska is to insure the free flow of news and other information to the public, and that those who gather, write, or edit information for the public or disseminate information to the public may perform these vital functions only in a free and unfettered atmosphere; (2) That such persons shall not be inhibited, directly or indirectly, by governmental restraint or sanction imposed by governmental process, but rather that they shall be encouraged to gather, write, edit, or disseminate news or other information vigorously so that the public may be fully informed."

NEB. REV. STAT. ? 20-144. To that end, it protects any ?medium of communication? which term ?shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.? Id. at ? 20145(2) (emphasis added).