Following the Supreme Court decision on Monday and with threat of jail time by Wednesday, Time magazine has decided it will turn over the notes of reporter Matthew Cooper that contain names of private sources associated with the leak of the secret identity of CIA operative Valerie Plame.
If you remember from July of 2003, former Ambassador Joseph C. Wilson IV publicly charged that the Bush administration had knowingly lied about the threat of weapons of mass destruction in Iraq. Not long after Wilson’s comments were published, Robert Novak wrote a column revealing the name of his wife, Valerie Plame, and her work for the CIA. Allegations ensued, claiming the leak was retaliation against Wilson for his criticisms of the administration. Now, in the summer of 2005, investigations into the leak still continue, headed up by U.S. Attorney Patrick Fitzgerald.
Cooper got into this mess by writing an article for Time that mentioned “some government agents” had given Plame’s name to the press. The information containing the anonymous names alluded to in the article was subpoenaed by a grand jury, and Cooper and journalist Tim Russert challenged the subpoena. U.S. District Court Chief Judge Thomas Hogan opined in the case – citing the 1972 Supreme Court decision Branzburg v. Hayes, which invalidated the use of the First Amendment to protect reporters from disclosing private sources – and denied their motion to quash the subpoena. The Supreme Court on Monday refused to rule on the case and thus upheld the opinion of the district court.
So, the debate ongoing in the last few days has been over the rights of the press versus the rights of the individual. What must be acknowledged by all is the great need for a responsible news media that helps keep government in check. Protection of press freedom from the threat of Congress was amended to the Constitution for a reason. No one is denying that. The only real question is: To what extent is the news media protected from government intrusion?
The reality is that when the government says, with the backing of two Supreme Court decisions, that no information is private when it plays into investigations, then the true practice of anonymous sources is impossible. This, of course, leads to top level, inside sources being more reluctant to relinquish vital information simply because a reporter can no longer be trusted when the story has something to do with federal law.
As it stands now, there’s no legal difference between the individual person and the Time magazine reporter when it comes to subpoenaed information. The news media is up in arms over this still, even though Time caved. The Free Flow of Information Act is a piece of legislation that has been introduced in the House and Senate and is strongly supported by various news organizations. The bill gives journalists an absolute privilege when it comes to sources.
Still, a problem arises when you allow the federal government to define exactly what a “journalist” is. With the advent of talk radio, Internet news sources, bloggers, podcasters and new manifestations of mass communication, anyone can be a reporter. Further, anyone can be a reporter and still not be recognized as such by the gatekeepers of the federal government and the legacy media.
The attack on the freedom of individuals to find and report information that is critical of the government on all levels must be resisted. The problem is people are way too trusting. According to polls done over the past several years, the least popular freedom is that of the press. In 2002, 40 percent of Americans said newspapers should not be allowed to freely criticize the U.S. military’s strategy and performance, according surveys done by the First Amendment Center.
This tide must be turned, but I’m not so sure a federal shield of protection is the way to go. When you give the federal government the role of defining the boundaries of journalism for the purposes of freedom, you may just be accomplishing what you hope to defeat. However, one thing is sure: Investigative journalism and critical reporting of the government from the community level to the upper realms of Washington is one of the most patriotic professions a person can have.