Keller, Bronstein, Abrams Discuss Plame Case and Shield Law

By: Joe Strupp Attorney Floyd Abrams, who is handling defending reporters Judith Miller and Matthew Cooper in the contempt charges arising from the Valerie Plame investigation, said this morning he believes his clients have a better chance of winning an appeal before the U.S. Supreme Court than they do of having the high court agree to hear the appeal.

His comments came during a panel discussion of journalists' freedom of information rights at the American Society of Newspaper Editors (ASNE) conference in Washington, D.C. Other panelists were San Francisco Chronicle Editor Phil Bronstein and Bill Keller, executive editor of The New York Times. It was moderated by Andy Alexander, bureau chief of Cox Newspapers? Washington bureau.

When discussing the proposed federal shield law, which would apply protections for journalists, like those already passed in 31 states, in the federal court system, Keller and Bronstein mentioned concerns that going to Congress could provide harm as well as help. ?Anytime you open the door to the federal government to regulate, the concern is what it allows the federal government to do,? said Bronstein, whose paper has been under attack for using confidential sources in its coverage of the BALCO steroid case.

Keller had a similar reaction, saying that ?my stomach goes into a knot? at the prospect of having Congress codify when confidential sources can be used: ?I see a danger that some members of Congress?s notion of the First Amendment might be different than those in this room.?

Still, both editors said the time is right for a federal law and supported a Supreme Court review of the Miller/Cooper appeal. ?On balance, it is a risk to take,? Keller noted.

Both reminded the audience that the low public opinion of the press requires a careful approach when seeking government protection. ?One of the things we need to do is admit our own fallibility,? Bronstein said, especially ?when you have a somewhat hostile public opinion toward the press.?

In discussing the Supreme Court and the Plame case, attorney Abrams said, ?I think there are six positive votes and three not positive. I would say our chances are better of getting something good out of the court than having the court take it. I think the very interest in the case has been very helpful.?

For the Supreme Court to hear an appeal, four justices must agree to grant a writ of certiorari. Abrams would not identify which justices he believes would refuse to do so.

Miller, a Times reporter, and Cooper, a reporter for Time magazine, are awaiting an appeal of their contempt convictions before the full D.C. Circuit Court of Appeals. The reporters have been found in contempt and ordered to serve up to 18 months in jail for refusing to disclose sources in the Plame case. Most recently, a three-judge panel of the circuit court upheld their convictions.

The case stems from a 2003 Robert Novak column revealing the identity of Plame, a former CIA agent. While Miller and Cooper have refused to testify, Novak himself has remained mum on whether he has been subpoenaed or has testified.

During a wide-ranging panel discussion, Abrams said he believes federal investigators have approached Novak, claiming that there would have been no other reason not to. ?There are only two choices,? Abrams told a group of hundred of editors. ?Either he has taken the Fifth Amendment or he has testified. Historically, journalists have not taken the Fifth Amendment in these cases, even when they could.?

Asked how the Miller/Cooper case had affected anonymous sourcing at the Times, Keller said the paper had already begun an effort to tighten restrictions on their use prior to the subpoenas, adding that newspapers probably could reduce their anonymous sourcing if they tried. ?Many cases, with a little effort, can be made on the record,? he said.

Prior to the panel, Abrams offered a short speech on the history of confidential sourcing, from to John Peter Zenger?s jailing in colonial times through the 1972 U.S. Supreme Court?s Branzburg decision, the last time the court took up the sourcing issue.

?We wound up with a decision so close that it reminded me of Tiger Woods? putt last week, just on the lip,? Abrams said about Branzburg. ?Not only 5 to 4 the press lost, but the fifth vote, Lewis Powell, saying things that sounded like, ?Maybe we really ought to have a case by case analysis of this.? It was and is murky.?

That is why, Abrams told editors, a federal shield law is needed.

?It does seem to me this is the time for the press to align itself behind a federal shield law,? he said. ?We have a situation where editors and journalists cannot know what they are doing is protected, what part of the country they may be called into, they cannot know whether they will be called before a state or federal court.?

?The last time the issue of federal shield law arose, it arose right after the Branzburg case, the votes were there, many in the press opposed it then because of concern over going to Congress to ask for favors and not knowing what Congress would do, [which are] not sufficient reasons to overcome the overriding need for federal shield law protection,? the attorney added.

?It may or may not pass, but it should not fail because the press is insufficiently supportive of that statute.?