Finally, Miller and Cooper Turn to the Supreme Court

By: Joe Strupp After three court decisions related to their refusal to reveal confidential sources, The New York Times' Judith Miller and Matthew Cooper of Time magazine have three strikes against them -- but they're not out just yet.

Now the last pitch is coming.

Their final hope is to be the U.S. Supreme Court. But legal experts and journalism observers differ over how likely the high court is to hear the case.

"I wouldn't think it would be heard this term," said Lucy Dalglish, executive director of Reporters Committee for Freedom of the Press, referring to the Supreme Court term that ends June 27. "Only if there is a request for an emergency hearing, and that could be done if no stay is granted."

But George Freeman, an in-house counsel for the Times who is working on the case with lead attorney Floyd Abrams, disagreed. In each of the three previous court rulings on the case, all of which declined to grant Miller and Cooper a reporter's privilege, judges indicated the question should be decided by the high court, Freeman said.

"So many judges in this case have said it is up to the Supreme Court," Freeman told E&P Wednesday. "Right now we would hope to get it heard this term."

Miller and Cooper each face jail time for refusing to divulge sources in the Valerie Plame case. Judge Thomas Hogan of the federal district court in Washington, D.C., held them in contempt last fall for refusing to reveal the source who leaked to them the identity of former CIA Agent Plame, whose identity was revealed in 2003 by columnist Robert Novak.

Cooper and Miller appealed the contempt order in February to a three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C., which denied the appeal. The case then was appealed to the full D.C. Circuit Court of Appeals, which on Tuesday declined to hear the case.

For Cooper and Miller to avoid jail at this time, two things must happen. First, they must be granted another stay of the original contempt order. They have seven days from Tuesday's ruling to request another stay.

Then, the Supreme Court must agree to hear the case, a difficult task given that the court will end its current term in just over two months.

Freeman noted that the justices set their own schedule, and that it's not unusual for the court to accept a case this late in the term. "The objective would be to [file an immediate appeal] so that they would be able to consider it before the end of the term," he said. Freeman said he and other attorneys working on the case would not seek to delay the proceedings through the summer and into the court's next term, which begins in October.

Abrams, who has led the defense team for Miller and Cooper, was traveling Wednesday and unavailable for comment. In a speech before the American Society of Newspaper Editors in Washington, D.C. last week, he said he believed his clients would have a more difficult time getting the high court to hear the case than actually winning an appeal before the court.

He added that he believed six of the nine justices would support his clients' appeal, if they do hear it, although he would not name them.

Miller, who spoke via cell phone Wednesday from San Francisco where she had sat on yet another panel discussing the case, offered only speculation that she could avoid jail. "I'm hopeful we're going to get the stay and that the Supreme Court will take the case," she said. "If they don?t, we all know the consequences. I am ready to remain true to my principles."

Times officials declined to comment on the next phase of the case, but issued a statement, which said, "We will seek a stay in order to have sufficient time to seek a U.S. Supreme Court review."

Dalglish said the chances of getting a stay and a high court review were "really a toss-up." "There are always some people who are reluctant to take any reporter's privilege case to the Supreme Court," she said.

In another scenario, Miller and Cooper could be granted a stay until the Supreme Court's next term, although that is unlikely, Dalglish said. She also said both could be jailed while the court hears the case, either this summer or next fall.

The last time the Supreme Court ruled on reporter's privilege came in the 1972 Branzburg decision, in which the judges denied a privilege but indicated that reporters should only be required to turn over confidential sources if all other potential sources for the same information have been exhausted.

Many legal experts have said the ruling's mixed message is not enough to clearly indicate what rights reporters have. "Everyone is looking at them to explain Branzburg," Freeman said. "They would be the ones to do it."