The 2005 jailing of New York Times reporter Judith Miller brought into
focus the larger issue of whether the First Amendment protects journalists who
refuse to reveal confidential sources. Since the U.S. Supreme Court handed down
its 1972 decision in Branzburg
v. Hayes, the number of journalists found in contempt of court has
grown.
The following selection of cases provides some historical context to this
topic, from the very first documented case of a reporters’ refusal to reveal a
confidential source in 1735 to Miller’s incarceration in 2005 and the 2006 BALCO
investigation.
1735
John Peter Zenger, the German-born immigrant publisher of the
New York Weekly Journal, was acquitted of seditious libel for his
newspaper’s anonymous criticisms of New York’s Colonial Gov. William Cosby. Some
scholars say this trial was the first documented case in American history of a
journalist’s defiance of a government order to reveal sources.
1
1787
During the Constitutional Convention, Benjamin Russell, the
publisher of the Federalist newspaper Massachusetts Centinel, announced
that his newspaper would refuse to run critical columns without an author’s
name, fearing that anonymous "emissaries" of "foreign enemies" would attempt to
scuttle the Constitution by "fill[ing] the press with objections" against the
proposal. 2
1848
John Nugent, a U.S. Senate correspondent for the New York
Herald, was confined inside the Capitol building by a Senate committee
investigating the source of a leak that led to the publication of the recently
approved, but still secret, Treaty of Guadalupe-Hidalgo, which ended the Mexican
War. The Senate called on Nugent to disclose the source of the leak, but he
refused, saying only that the information had not come from a senator or Senate
officer. Nugent was released a month into his confinement after the Senate
failed to coerce the journalist into revealing his source. The Senate publicly
cited “the face-saving grounds of protecting his health” as the reason for
Nugent’s release. 3
1875
In People ex rel. Phelps v. Fancher, the New York
Supreme Court upheld the authority of a trial judge to detain indefinitely a
journalist called before a grand jury in a criminal libel action. This case
originated from an anonymous article published in the New York Tribune.
The newspaper’s editor refused to disclose the identity of the article’s author
during grand jury testimony on the grounds that “the rules of a public journal
forbade it.” The court described the article as libelous and ruled against the
newspaper, stating: “He who writes a libelous article for publication in a
newspaper, is certainly guilty of a crime,” and “[t]here is no exchange or
substitution of punishment in the administration of justice.”
4
1886
Baltimore Sun reporter John T. Morris spent time in
jail after refusing to reveal to a grand jury sources for stories about police
and elected officials who received bribes from illegal gambling operations. A
decade after this event, in 1896, Maryland became the first state to pass a
shield law protecting journalists from having to reveal their sources’
identities. 5
1887
A journalist for The Defiance newspaper in Atlanta
wrote an anonymous article about a real estate agent who refused to rent
property to a black tenant. In the article, the journalist described the real
estate agent, George W. Adair, as an “old skunk” who should be left to “stink
himself to death.” The newspaper’s owner, A.W. Burnett, was indicted for libel
and sentenced to 10 days in jail and fined $50 after he initially refused to
reveal the journalist’s name. Burnett eventually relented and testified, but not
before the Georgia Supreme Court ruled that as the owner of the newspaper
Burnett could “be punished for contempt of the court, as any other witnesses
refusing to testify” and had “surely merited the punishment he had received.”
6
1896
Maryland’s General Assembly enacted the nation’s first shield
law, protecting journalists under certain circumstances from having to reveal
their sources. 7
1897
The California Senate subpoenaed San Francisco Examiner
news editor Andrew M. Lawrence and reporter L.L. Levings following the
publication of charges that the state Senate’s members had exchanged votes for
bribes. The journalists, objecting partly on the grounds that “the information
sought to be elicited was irrelevant and hearsay,” refused to disclose the
sources to Senate investigators. A U.S. district court in California, however,
viewed the questioning of the journalists as “a natural and logical method for
the Senate to follow in its endeavor to arrive at the truth,” and ruled that the
journalists were not justified in refusing to give the names on the grounds that
the communications were privileged. 8
1911
Augusta (Ga.) Herald reporter T.J. Hamilton
served five days in jail and was fined $50 for refusing to disclose to a police
review board the name of an officer who had leaked information about a murder.
Hamilton, questioning the authority of the board to bring contempt charges,
appealed to a state court. The court held that although the board had the power
to punish a witness for not appearing, it had no authority to punish a refusal
to testify. The Georgia Supreme Court, however, reversed the lower court and
found in favor of the police review board. 9
1913
New Jersey reporter Julius Grunow was found guilty of contempt
after he refused to reveal his source to a grand jury investigating charges that
a surveyor double-billed a village for grading work. Grunow’s story, which was
published in the Dec. 12, 1911, edition of the Jersey Journal, reported
that during an open meeting a village trustee leveled the double-billing charge.
Asked to reveal his source, Grunow refused, citing reporter’s privilege. The New
Jersey Supreme Court, however, ruled that Grunow’s article was libelous and that
a decision to excuse the journalist from testifying “would be far[-]reaching in
its effect and detrimental to the due administration of law,” as it would
“shield the real transgressor and permit him to go unwhipped of justice.”
10
1917
Journalist Robert E. Holliway of the St. Louis Republic
was jailed for contempt of court after refusing to reveal the sources for his
story, "7 True Bills are Voted in Coal Inquiry," in which he reported that a
grand jury returned seven previously unannounced indictments in an investigation
of the coal industry. 11
1936
Martin Mooney, a reporter for the New York American,
was called as a witness before a grand jury probing alleged violations of
gambling and lottery laws after he wrote an article saying the grand jury’s
investigations into these charges were ineffective. After refusing to answer
questions and furnish the names and addresses of his sources on the grounds that
they were confidential and privileged, Mooney was cited for contempt and jailed.
The New York Court of Appeals upheld Mooney’s contempt citation and further
ruled that the decision to enact a shield law for reporters must be left up to
the Legislature, not the courts. 12
1950
Reubin Clein, an editor for Miami Life magazine,
refused to disclose the source of a leak about a grand jury probe of a city
councilman accused of bribery. A trial court held the editor in contempt and
sentenced him to 30 days in jail. Citing grand jury secrecy laws and the broad
investigatory powers vested in grand juries under the state constitution, the
Florida Supreme Court upheld the conviction and sentence, finding Clein had no
privilege against revealing his source. 13
1958
In Garland v. Torre, actress Judy Garland became the
first litigant to face a formal First Amendment challenge to her demand for a
journalist’s sources. Garland sued CBS for defamation, alleging that she was
defamed by quotes from an unnamed network executive arising out of a New York
Herald Tribune column written by Marie Torre. Torre testified at her
deposition, but refused to disclose the identity of her source. The trial judge
held the journalist in criminal contempt, sentenced her to 10 days in jail, but
allowed her to remain free pending appeal. On appeal, Torre defended herself on
First Amendment grounds. Ultimately, the 2nd U.S. Circuit Court of Appeals held
that even if the First Amendment were to provide some protection, the reporter
must testify when the information sought goes to the heart of the plaintiff’s
claim. 14
1968
Annette Buchanan, a 20-year-old managing editor of The
Daily Emerald at the University of Oregon, was held in contempt and fined by
the Oregon Supreme Court after she printed a story about the use of marijuana by
fellow students on her campus. Her story prompted the local district attorney to
ask her to tell a grand jury the identities of the students she saw smoking
marijuana. She refused and asserted the First Amendment as the source of her
privilege. The state high court held that her argument — that merely being a
member of the press endowed her with a privilege — was not valid.
15
1972
In the landmark decision, Branzburg
v. Hayes, the U.S. Supreme Court ruled that “the First Amendment does
not relieve a newspaper reporter of the obligation that all citizens have to
respond to a grand jury subpoena and answer questions relevant to a criminal
investigation, and therefore the Amendment does not afford him a constitutional
testimonial privilege for an agreement he makes to conceal facts relevant to a
grand jury's investigation of a crime or to conceal the criminal conduct of his
source or evidence thereof.” 16
Newark (N.J.) Evening News reporter Peter Bridge was charged
with contempt and jailed for 21 days after refusing to answer questions from an
Essex County grand jury related to a story he wrote about a bribery case
involving the Newark Housing Authority. Though Bridge answered more than 50
questions posed by the grand jury, he refused to answer questions that he said
went beyond the scope of his story, including inquiries about his sources.
Bridge was the first reporter to be jailed after Branzburg v. Hayes.
17
Los Angeles Herald-Examiner journalist William Farr was jailed for 46
days for refusing to reveal sources for a story he wrote about the Charles
Manson murder trial. Despite a gag order imposed by the judge on attorneys,
witnesses and court personnel, Farr obtained and published a prospective
witness’s account of plans by the Manson family to murder celebrities such as
Frank Sinatra and Elizabeth Taylor. When Farr refused to tell Los Angeles
Superior Court Judge Charles H. Older where he obtained the information for his
article, Older cited Farr for contempt of court and ordered him jailed until he
revealed his sources. He never did. Farr spent five days in jail until U.S.
Supreme Court Justice William O. Douglas ordered his release pending
consideration of his case by the 9th U.S. Circuit Court of Appeals. Although
Older’s contempt citation was eventually allowed to stand, a state appeals court
ruled in 1974 that state law limited the punitive sentence for civil contempt.
Older declined to pursue the matter further. Farr’s ordeal eventually led to a
strengthening of California’s shield law. 18
1978
New York Times reporter Myron Farber wrote a series of
articles in 1975 that led to the criminal indictment of New Jersey surgeon Dr.
Mario Jascalevich — referred to as “Dr. X” in Farber’s early articles — on
charges that he murdered five of his patients with lethal doses of curare, a
powerful muscle-relaxing drug. Attorneys for Jascalevich subpoenaed all of
Farber’s notes and files on the case to see if they could be relevant to
Jascalevich’s defense. Farber refused to turn over his notes and was sentenced
to six months in jail and fined $1,000. The New York Times was also
ordered to pay $100,000 in civil contempt fines plus $5,000 per day while Farber
was in jail. Farber served 40 days of his six-month sentence before New Jersey
Gov. Brendan Byrne pardoned him and ordered the return of $286,000 in criminal
fines against the Times. 19
1981
Ellen Marks, a reporter for The Idaho Statesman, was
cited for contempt of court for refusing to reveal to a judge the location where
she interviewed a woman who disappeared with her 8-year-old daughter and defied
court orders to return the girl to her father. In return for an interview, Marks
had promised the mother that she would not reveal their location. When
Magistrate Judge Karen Vehlow ordered Marks to disclose the address where the
interview took place, she refused. At first, Vehlow ordered Marks jailed, but
then released her the same day and began a series of $500 fines. Vehlow ordered
an end to the fines after a private investigator found the child in San Jose,
Calif., and the father had succeeded in taking her into his custody. But by then
the newspaper had already paid $37,500 in fines on Marks' behalf. Eventually,
the Idaho Supreme Court upheld Marks’ jailing and fine.
20
1982
Barry Smith, a reporter for the Durango (Colo.)
Herald, and Dave Tragethon, a reporter for KIUP-KRSJ radio, agreed in a
plea bargain to serve two days in jail and pay a fine of $500 each for refusing
to reveal their sources in reporting on a murder case. The stories published by
the Herald and aired on KIUP-KRSJ included information that LaPlata
County District Judge Al Haas had intended to protect from public release
through a gag order. 21
1984
Richard Hargraves, an editorial writer for The
Belleville (Ill.) News-Democrat, was found in contempt and sentenced
to jail over a weekend in a case stemming from a libel suit in which Hargraves
was the defendant. In 1981, Hargraves wrote an editorial about Jerry F.
Costello, the chairman of the Board of Supervisors for St. Clair County, Ill.,
in which Hargraves said Costello lied about a campaign promise to oppose new
taxes. Costello sued on grounds of editorial misrepresentation, but the trial
court dismissed the case saying the editorial was protected expression of
opinion. A state appeals court, however, reinstated the case, holding that a
jury should decide the issues of fact. During a deposition, Hargraves refused to
name anyone in county government to whom he had spoken before writing the
editorial. County Judge Roger Scrivner ruled Hargraves in contempt of court and
sentenced him to jail until he revealed his sources. The U.S. Supreme Court then
issued a stay of Scrivner’s order to allow itself time to hear the case, but
later lifted the stay without comment. Hargraves remained jailed for three days,
until his sources came forward and acknowledged that had talked to him.
22
1985
A judge in the murder trail of Cathy Evelyn Smith found
freelance writer Chris Van Ness and Anthony Brenna, a reporter for The
National Enquirer, in contempt of court after they refused to testify about
an interview they conducted with Smith, a former rock singer who was accused of
killing comedian John Belushi by giving him an overdose of heroin and cocaine.
Los Angeles Municipal Court Judge Brian Crahan sentenced Van Ness to 30 days in
jail and Brenna to 20 days in jail. Each was fined $1,000. Both men were
released after a state appeals court vacated the contempt order. Van Ness would
eventually face contempt charges again during the same trial for refusing to
answer questions about his interview with Smith and for refusing to surrender a
tape of their conversation. Municipal Judge James Nelson issued a contempt
ruling and ordered Van Ness to serve a total of 10 days in jail. After three
hours in custody, Van Ness was released after agreeing to testify and to produce
the tape. 23
1986
Detroit television reporter Bradley Stone was held in contempt
by a grand jury investigating the slaying of a state police officer, allegedly
at the hands of two gang members who may have been present during Stone's
filming of a report on the activities of Detroit youth gangs in July 1985, one
month before the slaying. Stone was held in contempt and jailed for one day
before he was released pending his appeal. Leaning heavily on Branzburg v.
Hayes, the 6th U.S. Circuit Court of Appeals concluded that the contempt
order in this case did not violate the First Amendment or the equal-protection
clause. 24
1987
Los Angeles Times reporter Roxana Kopetman and
photographer Roberto Santiago Bertero were cited for contempt, sentenced to jail
and ordered to pay fines after they refused to answer questions in court.
Kopetman and Bertero were called as witnesses to the arrest of a man accused of
misdemeanor charges of carrying brass knuckles. Kopetman refused to answer
questions outside the scope of the account she wrote about the arrest. Kopetman
spent six hours in a courthouse lockup and was freed on $1,000 bail. Bertero’s
sentence was stayed pending an appeal. A Los Angeles Superior Court judge ruled
that the California Constitution protected journalists from being cited for
contempt and overturned the charges against Kopetman and Bertero.
25
1990
San Antonio television reporter Brian Karem was jailed and
ordered to serve six months behind bars for refusing to reveal the names of
three confidential sources who helped arrange a telephone interview between
Karem and a suspect held in a local jail on charges of killing a police officer.
Karem was released 13 days into his sentence when all three sources came forward
to identify themselves. 26
Libby Averyt, a courthouse reporter for the Corpus Christi (Texas)
Caller-Times, was charged with contempt of court for refusing to discuss
unpublished portions of her jailhouse interview with a defendant who admitted he
had killed a local jewelry store clerk. Averyt insisted that the First Amendment
and provisions in the Texas Constitution allowed a reporter to keep unpublished
information confidential. Averyt was released after spending two days in jail
when prosecutors agreed to drop the contempt charges against her.
27
1991
Four South Carolina reporters — Sid Gaulden and Schuyler Kropf
of The Post and Courier of Charleston, Cindi Scoppe of The State,
and Andrew Shain of The Sun News of Myrtle Beach — were jailed for
several hours after refusing to testify in the federal corruption trial of state
Sen. J.M. “Bud” Long. Long was accused of taking a $2,000 bribe in return for
his support of a pari-mutuel betting bill that never passed. The four reporters
wrote stories about Long and were subpoenaed for their testimony in the case.
They lost their appeal of their sentence, but by then the bribery trial was
over; none of the reporters was compelled to testify.
28
Felix Sanchez of The Houston Post and James Campbell of the
Houston Chronicle were found in contempt of court for refusing to point
out in a courtroom the people they had interviewed for stories about a double
murder. Both Sanchez and Campbell argued that they had agreed to quote witnesses
anonymously for their stories and had not recorded their names. They also said
they would be unable to recognize those interviewed months before and claimed
the action violated the First Amendment right to freedom of speech. A state
district judge ordered both men jailed for 30 days, but they were freed on their
own recognizance after a few hours, pending their appeal. On appeal, a federal
judge overturned the contempt ruling. 29
1993
While working for the Stuart News in Florida in 1990,
Tim Roche was found in contempt of court and sentenced to 30 days in jail for
refusing to say who allowed him to see a sealed child-custody order. Roche
quoted the sealed document in a Stuart News story about a judge’s custody
order in a controversial child-abuse case. By 1993, Roche had exhausted his
appeals and Gov. Lawton Chiles declined to grant him an unconditional pardon.
Roche also declined an offer from Chiles to perform 300 hours of community
service instead of serving jail time, saying the journalistic principle he was
upholding should not be compromised. Roche served 18 days behind bars but
received time off under a program to reduce overcrowding and for performing
extra work duties. 30
James Richard “Rik” Scarce claimed he was entitled to a “scholar’s
privilege” under the First Amendment and federal common law — similar to that of
a reporter — not to divulge information he obtained under the promises of
confidentiality. Scarce was the author of a book, Eco-Warriors: Understanding
the Radical Environmental Movement. He served 159 days in jail for refusing
to answer questions before a federal grand jury investigating the August 1991
raid of Washington State University by a group calling itself the Animal
Liberation Front. The raid caused about $100,000 in damages at the U.S.
Department of Agriculture offices at the university. Scarce acknowledged that he
was a friend of Rodney Coronado, an activist and target of the grand jury’s
investigation. Although Scarce did not say whether he talked to Coronado or
others about the raid, he maintained that conversations would have been part of
his research made under promises of confidentiality. U.S. District Judge W.
Fremming Nielsen eventually released Scarce because he believed the author would
never testify. 31
1994
Lisa Abraham, a reporter for The Tribune Chronicle of
Warren, Ohio, was charged with contempt of court and jailed for 22 days for
refusing to testify before a grand jury about an interview she conducted with a
county official who was facing indictment for circumventing bidding procedures
and other violations. Abraham interviewed James P. Fiorenzo, a county engineer,
who was accused of abusing his power by having his office renovated at a cost of
$25,000. She interviewed Fiorenzo and wrote one article outlining discrepancies
between what he said in the interview and what he said publicly.
32
1996
Palm Beach County Circuit Judge Rodger Colton charged Miami
Herald reporter David Kidwell with contempt of court and sentenced him to 70
days in jail for refusing to testify in the murder trial of John Zile, a man
charged with killing his 7-year-old stepdaughter. Kidwell was subpoenaed to
testify at Zile’s trial after the prosecution learned that Zile had confessed to
Kidwell during a jailhouse interview. During the interview, Zile told Kidwell
about the murder and provided details of the girl’s death that were later
published in a Herald article. After questioning the need for Kidwell’s
testimony, since Zile had also confessed to police, U.S. District Judge Wilkie
Ferguson Jr. ordered Kidwell released after 14 days behind bars.
33
Bruce Anderson, editor of the alternative weekly northern California
newspaper, The Anderson Valley Advertiser, was held in contempt when he
told a judge that he would not turn over a letter apparently written by a man
charged in the slaying of a sheriff’s deputy in a shootout on an Indian
reservation. Anderson published the letter about the shooting in The
Advertiser, but he refused to turn it over to prosecutors and was
subsequently jailed. Because the letter had already been published, it was not
covered by the California statute protecting reporters’ notebooks and
confidential sources. After Anderson spent the first weekend in jail, the
newspaper agreed to turn over the letter, but prosecutors refused to acknowledge
that the letter was authentic because it had been written on a typewriter.
According to prosecutors, the murder suspect, Eugene “Bear” Lincoln, was in jail
at the time with no access to a typewriter. Anderson remained in jail for 13
days until a judge ruled that Anderson had given the court his only version of
the letter. 34
1998
Schoolteacher and retired journalist John Rezendes-Herrick was
sentenced to five days in jail for refusing to reveal a confidential source in
stories that he wrote in 1995 as a reporter for the Inland Valley
(Calif.) Daily Bulletin. Rezendes-Herrick wrote a series of articles
about a landfill plan backed by Waste Management Inc., the nation’s largest
waste-removal firm, and the Cadiz Land Co., which opposed the project, claiming
the waste would contaminate groundwater and ruin farmland. When Waste Management
was indicted for stock fraud, wiretapping and illegal use of trade secrets to
drive down Cadiz stock, prosecutors subpoenaed Rezendes-Herrick to testify. At
least one unidentified source told prosecutors that Rezendes-Herrick was paid to
write negative stories about Cadiz, according to attorneys for the reporter.
Rezendes-Herrick refused to reveal his source for the stories, citing
California’s shield law, and was subsequently jailed.
35
2000
Sacramento Valley (Calif.) Mirror publisher,
editor and lead reporter Tim Crews was jailed five days for contempt after
refusing to divulge his sources for a story that implicated a former highway
patrolman in the theft of a handgun. 36
2001
Vanessa Leggett, a freelance writer and book author who was
researching the death of Doris Angleton, who was found shot to death on April
16, 1997, was jailed for 168 days for refusing to disclose her research and the
identities of her sources to a federal grand jury investigating the murder.
Doris Angleton’s husband, Robert Angleton, and his brother, Roger, were charged
with capital murder in the case. Prosecutors believed that Robert Angleton, a
millionaire and former bookie, hired his brother to kill his wife to prevent her
from getting millions in a divorce settlement. Roger Angleton spoke with Leggett
before he committed suicide in jail. He left behind notes confessing to the
slaying, saying he planned the murder and framed his brother. Although Leggett
gave investigators tapes of her interviews with Roger Angleton, she refused to
hand over her notes. On July 20, 2001, a federal judge charged Leggett with
contempt and sentenced her to jail for up to 18 months. The 5th U.S. Circuit
Court of Appeals upheld the July 20 contempt order, finding journalists do not
have a right to refuse to testify before a grand jury. Leggett was freed on Jan.
4, 2002. 37
2003
Reporters Abdon Pallasch and Robert Herguth of the Chicago
Sun-Times and Flynn McRoberts of the Chicago Tribune complied with an
order issued by U. S. District Judge Ronald A. Guzman, agreeing to hand over
tape recordings of interviews with a key witness in the terrorism trial of
Michael McKevitt. McKevitt faced charges of directing terrorist activities
stemming from an August 1998 car bombing in Northern Ireland that killed 29
people and injured more than 300 others. The three reporters faced the
possibility of jail and fines of $1,000 a day for refusing to turn over their
tapes. However, after consulting with their attorneys, Pallasch, Herguth and
McRoberts decided to comply with Guzman’s order. Pallasch said, “It was one of
the hardest decisions I ever made. Ultimately, we had two very good lawyers who
both advised us that if we went forward with our plan of going to jail and
defending our right to not give up the tapes, we might prompt a bad ruling by
the 7th Circuit on press freedoms. That would do more harm than good.”
38
2004
Reporter Jim Taricani of NBC’s Providence, R.I., affiliate
station WJAR-TV was sentenced to six months of house arrest for defying a court
order to reveal who illegally gave him a secret FBI videotape showing a
Providence official taking a bribe. U.S. District Judge Ernest C. Torres told
Taricani that he would have sent him to prison, but did not because of
Taricani’s health. Taricani was a heart-transplant recipient and was in poor
health. In April 2005, Torres agreed to released Taricani from his home
confinement four months into his six-month sentence because he believed Taricani
had “fully complied with both the letter and spirit of the conditions of his
home confinement.” 39
In September 2004, during an investigation of leaks about an impending government raid against two Islamic charities suspected of funding terrorist operations, U.S. Attorney Patrick Fitzgerald issued a subpoena to New York Times reporters Philip Shenon and Judith Miller in an effort to obtain the reporters’ telephone records. Fitzgerald claimed that before the government blocked the charities assets and raided their offices in 2001 a Times reporter called the charities for comment, effectively alerting them to the raid. The Times sued the government asking the court to stop Fitzgerald from obtaining the records. On Feb. 24, 2005, a federal judge ruled in favor of the Times, saying that the paper had a First Amendment right to protect the confidentiality of its sources by refusing to give up its phone records to the government. However, on Aug. 1, 2006, a divided three-judge panel of the 2nd Circuit overturned the lower court’s decision and ruled that the government could inspect the reporters’ phone records. Because Fitzgerald sought the records from a telephone company — and not from the Times — the ruling did not demand any compliance on the part of the newspaper. 40
In December 2004, attorneys for former bio-weapons researcher Steven Hatfill issued subpoenas to several news outlets as part of Hatfill’s lawsuit against the U.S. government. Among the journalists subpoenaed was The New York Times' Nicholas D. Kristof, who wrote a series of columns that explored who might be responsible for the fall 2001 anthrax attacks. In a separate lawsuit, Hatfill sued The New York Times for libel, claiming that Kristof identified him as a “likely culprit” in the attacks. The newspaper argued that Kristof did not intend to implicate Hatfill and was only trying to jump-start the FBI investigation of possible suspects. In October 2006, federal Magistrate Liam O’Grady ordered the Times and Kristof to reveal three confidential sources the columnist had used in his stories. Kristof refused and the newspaper appealed the order but lost. As a sanction for not revealing the sources, O’Grady ruled that the Times could not use the information from those sources in its defense against the libel suit. On Jan. 12, 2007, however, U.S. District Judge Claude M. Hilton dismissed the libel case, concluding that Hatfill was a public figure and could not show that The New York Times had knowingly published false information. Hatfill's suit against the U.S. government continues.41
2005
Four journalists — H. Josef Hebert of the Associated Press,
James Risen of The New York Times, Robert Drogin of the Los Angeles
Times, and Pierre Thomas, formerly of CNN and now of ABC News — were found
in contempt of court for refusing to reveal their sources to a federal grand
jury for stories about former nuclear scientist Wen Ho Lee. U.S. District Judge
Thomas Penfield Jackson also imposed a $500-a-day fine on the reporters until
they provided the names. Lee’s name surfaced in news reports alleging he
mishandled nuclear-weapons information at the Los Alamos National Laboratory in
New Mexico. He sued the Departments of Justice and Energy and the FBI for their
alleged violations of his rights under the Privacy Act of 1974. When the
reporters were called to testify in the case, they refused, citing First
Amendment privilege. In a separate case, another reporter, Walter Pincus of
The Washington Post, was also found in contempt after he refused to
reveal his government sources for stories he wrote about the criminal
investigation. Hebert, Risen, Drogin and Thomas filed petitions of writ to the
U.S. Supreme Court. In June 2006, Wen Ho Lee settled his privacy lawsuit,
receiving $895,000 from the government for legal fees and associated taxes, and
$750,000 from the five media organizations involved in the case, effectively
ending contempt-of-court proceedings against the five reporters. The Supreme
Court refused to hear the case, declining to consider an appeal by the news
organizations fighting to protect confidential
sources.42
New York Times reporter Judith Miller spent 85 days in jail for
refusing to testify about conversations she had with confidential sources in
connection with the leaked identity of CIA operative Valerie Plame. Plame’s
identity was leaked to reporters by officials within President Bush’s
administration, after the Times published on July 6, 2003, an op-ed piece
by Plame’s husband, U.S. ambassador Joseph Wilson, in which he claimed pre-war
intelligence on Iraq’s nuclear weapons program was exaggerated. The contempt
order against Miller was lifted when she agreed to testify before a grand jury.
Miller claimed that I. Lewis “Scooter” Libby, Vice President Dick Cheney’s chief
of staff and alleged source of the leak, assured her that she was no longer
bound by any pledge of confidentiality to protect his identity.
43
2006
After reporting on a federal probe of steroid use by athletes, San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada were subpoenaed to testify before a grand jury investigating the leaked testimony of Major League Baseball players Barry Bonds, Jason Giambi and others. The Chronicle published the leaked testimony beginning in late 2004 in a series of stories about the Bay Area Laboratory Co-Operative (BALCO). Five people linked to BALCO were convicted of distributing steroids to athletes, including the company’s founder Victor Conte and Vice President James Valente. Williams and Fainaru-Wada faced the possibility of prison time unless they revealed their sources for the leaked testimony. On Sept. 25, 2006, U.S. District Judge Jeffrey White issued a written ruling ordering Williams and Fainaru-Wada to jail for up to 18 months for defying the grand jury subpoenas by refusing to reveal their sources. In October, the Chronicle agreed to be held in contempt of court and pay any court fines for refusing to assist the grand jury investigating who leaked its reporters the secret testimony. In exchange, the government agreed to stay any fines and delay the reporters’ incarceration until a federal appeals court panel could decide the case. In February 2007, attorney Troy Ellerman, who represented Conte and Valente in the BALCO trial, revealed that he was the confidential source who allowed the Chronicle reporters to view transcripts of the grand jury testimony. Ellerman agreed to plead guilty to four felony counts of obstruction of justice and disobeying court orders, effectively ending the possibility of jail time for Williams and Fainaru-Wada. 44
In August 2006, freelance videographer Joshua Wolf was jailed after refusing to cooperate with a grand jury investigation of an alleged arson against a San Francisco police car during an anarchist protest in July 2005. Wolf videotaped the protest, part of which aired on local television and on Wolf’s Web site, but a Joint Terrorism Task Force of FBI agents and police sought the entire tape in an effort to find evidence against protesters who injured a police officer and set fire to the squad car. Wolf refused to turn over his videotape to authorities, saying he would not act as the government’s eyes and ears. In court, Wolf’s attorneys said the tape showed no evidence of a crime and invited the court to view outtakes. However, U.S. District Judge William Alsup refused Wolf’s request and held him in contempt of court. Wolf, 24, has been in prison since August, with only a brief break in September related to his appeal. Feb. 6, 2007, marked his 169th day at the Federal Correctional Institution in Dublin, Calif., surpassing journalist Vanessa Leggett as the longest incarcerated journalist in modern American history. 45
Endnotes
1 Roger D. Gunn, “A Look at Journalism’s Struggle for
Professional Status,” at http://www.cc.utah.edu/~rdg1 at 13. (Accessed May 19,
2006); Robert W. Jones, The Law of Journalism, Washington D.C.:
Washington Law Book Co., 1940, 20-24; Charles D. Tobin, “From John Peter Zenger
to Paul Branzburg: The Early Development of Journalist’s Privilege,” in Media
Law Resource Center White Paper on Reporter’s Privilege, 29.
2 Boston Independent Chronicle, Oct. 4, 1787, 13
Documentary History of the Ratification of the Constitution 315 (J. Kaminski
& G. Saladino eds. 1981); Tobin, 31.
3 Tobin, 33.
4 Tobin, 37-38.
5 Conflicting information has been written about the
amount of time Morris spent in jail. Some sources state say he was jailed for
two days, others that he spent four or five days in jail. For a more detailed
account, see: Nathan Siegel, “Our History of Media Protection,” Washington
Post, Oct. 3, 2005; “A Newspaper Man In Trouble: Asked for His Source of
Information About Grand Jury Secrets,” Chicago Daily Tribune, Dec. 13,
1886; “Knew the Grand Jury’s Secrets: A Reporter of a Baltimore Paper Imprisoned
for Contempt of Court,” Chicago Daily Tribune, Dec. 23, 1886; Gerald W.
Johnson, Frank R. Kent, H. L. Mencken, and Hamilton Owens, The Sunpapers of
Baltimore, 1837-1937, New York: Alfred A. Knopf, 215-216 (1937); Tobin,
34.
6 Pledger v. State, 77 Ga. 242, 3 S.E. 320
(1887); Tobin, 38.
7 Tobin, 34.
8 In Ex Parte A.M. Lawrence and L. L. Levings,
116 Cal. 298, 48 P. 124 (1897); Tobin, 34.
9 “Jail Term Price of ‘Tip’ — Augusta Reporter Protects
Policeman Who Gave Him Murder Story,” Washington Post, March 15, 1911;
Tobin, 35.
10 In re Grunow, 84 N.J.L. 235, 85 A. 1011
(1913); Tobin, 37.
11 Ex Parte Holliway, 272 Mo. 108, 199 S.W. 412,
414 (1917); Tobin, 35.
12 People ex rel. Mooney v. The Sheriff of New York
County, 269 N.Y. 291, 199 N.E. 415 (1936); Tobin 39-40.
13 Clein v. State, 52 So. 2d 117 (Fla. 1950);
Tobin, 36.
14 Tobin, 41-44.
15 State of Oregon v. Buchanan, 250 Ore. 244; 436
P.2d 729 (1968)
16 Case summary for Branzburg
v. Hayes, First Amendment Center Online, accessed Jan. 27, 2006.
17 Richard J. H. Johnston, “A Reporter Loses in Contempt
Case,” New York Times, Aug. 27, 1972; “Judge Frees N.J. Writer Held 21
Days,” Associated Press, Oct. 24, 1972.
18 William T. Farr, "Bill Farr on His Imprisonment: 'I
Followed the Code of Any Good Reporter,'" Los Angeles Times, Jan. 30,
1973; Jack Jones, "Reporter Farr Dies; Went to Jail to Protect Sources," Los
Angeles Times, March 6, 1987.
19 Robert Hanley, “Warrant Issued for Times Reporter in
Jascalevich Case,” New York Times, July 15, 1978; “Statements by Farber
and The New York Times,” New York Times, July 25, 1978; Lesley Oelsner,
“Justice White Bars A Continued Stay For Times Reporter,” New York Times,
Aug. 2, 1978; Bill Richards, “N.Y. Times Yields Papers in ‘Dr. X’ Case,”
Washington Post, Aug. 19, 1978; Michael Goldfarb and Harriet Blake,
“Personalities,” Washington Post, Jan. 20, 1982.
20 “Reporter’s Fines Halted in Confidentiality Case,”
Associated Press, Feb. 1, 1981; “Courts as Intimidators,” Los Angeles
Times, Feb. 5, 1981; Jonathan Friendly, “'Shield Laws' Protect Press Sources
— In Most Cases,” New York Times, Jan. 24, 1982; Jonathan Friendly,
“Prosecutors Increase Efforts To Make Press Name Sources,” New York
Times, Nov. 26, 1983.
21 “Two Colorado Reporters Jailed For Contempt,”
Associated Press, June 30, 1982.
22 Jonathan Friendly, “Writer in Libel Suit Faces jail
on Article’s Sources,” New York Times, July 2, 1984; Thomas B.
Rosenstiel, “Journalist Enters Jail Rather Than Name Sources,” Los Angeles
Times, July 4, 1984; “Journalist Jailed for Hiding Source,” New York
Times, July 4, 1984; Elizabeth Holland, “Ex-reporter went to jail here in
1984 rather than name sources,” St. Louis Post-Dispatch, July 7,
2005.
23 “Belushi Case Judge Holds 2 Reporters in Contempt,”
New York Times, June 12, 1985; Belushi reporters in contempt of court,”
Chicago Tribune, June 12, 1985; Michael C. Tipping, “Belushi Case Writer
Jailed; Won’t Give Up Tape,” Los Angeles Times, Oct. 10, 1985; “Belushi
case writer to release tape,” Chicago Tribune, Oct. 11, 1985.
24 Storer Communs. Inc. v. Giovan (In re Grand Jury
Proceedings), 810 F.2d 580 (6th Cir. 1987). See also, Karl H. Schmid,
“Journalist’s Privilege in Criminal Proceedings: An Analysis of United States
Courts of Appeals’ Decisions From 1973 to 1999,” American Criminal Law
Review, 39:4 (Fall 2002), 1468.
25 Chris Woodyard, “Contempt citations lifted on
reporter, photographer,” Los Angeles Times, Dec. 17, 1987.
26 Doug Lee and Mitchell Hartman, “Protecting sources
gets harder as media, courts change rules,” Quill, 78:9 (Nov. 1990),
19.
27 “Reporter spends weekend in jail,” United Press
International, Dec. 8, 1990; Howard Kurtz, “Texas Judge Jails Reporter for
Silence in Murder Case,” Washington Post, Dec. 8, 1990; “Jailed Reporter
Released, Still Refusing to Answer Questions,” Associated Press, Dec. 10,
1990.
28 Colette Baxley, “Reporters Jailed, Released In
Statehouse Trial,” Associated Press, Nov. 20, 1991.
29 Susan Fahlgren, “Judge Overturns Contempt Ruling
Against Two Reporters,” Associated Press, March 4, 1991.
30 “Judge orders a reporter to testify or head for
jail,” Orlando (Fla.) Sentinel, Oct. 24, 1990; “News reporter
released after 18 days in Stuart jail,” Orlando Sentinel, April 2, 1993;
“Florida reporter completes sentence,” Editor & Publisher, April 24,
1993.
31 Nicole Peradotto, “Scarce freed, judge releases WSU
grad student jailed for refusing to divulge names of those suspected in research
raid,” Lewiston (Idaho) Morning Tribune, Oct. 21, 1993; John K.
Wiley, “Researcher Enters Fifth Month in Jail for Contempt of Grand Jury,”
Associated Press, Sept. 21, 1993.
32 William Glaberson, “Reporter’s Interviews Bring Jail
and Test for Rights,” New York Times, Feb. 9, 1994; “Ohio Reporter Ends
Jail Stay,” New York Times, Feb. 11, 1994.
33 Martin Merzer, “Herald reporter goes to jail for
silence about Zile story,” Miami Herald, Oct. 8, 1996; David Lyons,
“Reporter jailed for his silence is freed by federal judge,” Miami
Herald, Oct. 22, 1996.
34 “Editor Jailed Over Letter is Freed,” New York
Times, June 9, 1996; Jim Doyle, “Jailed Mendocino Editor Freed After
Cooperating,” San Francisco Chronicle, June 7, 1996; Carey Goldberg,
“Eccentric Editor Is Jailed Over Letter in Paper,” New York Times, June
3, 1996; Jim Doyle, “Mendocino County Editor Sent Back to Jail, Authorities
doubt authenticity of subpoenaed letter,” San Francisco Chronicle, May
30, 1996; Charles Burress, “Mendocino County Editor Jailed for Contempt, He
withheld letter sought as evidence in murder trial,” San Francisco
Chronicle, May 28, 1996.
35 “Reporter-turned-teacher faces jail,” Associated
Press State & Local Wire, Nov. 12, 1998.
36 Reporters Committee for Freedom of the Press, “Journalist jailed for
protecting confidential source,” accessed Jan. 23, 2006; Jennifer Coleman,
“Judge orders journalist to jail for refusing to name sources,” Associated Press
State & Local Wire, Feb. 24, 2000; John Howard, “Journalist starts jail term
for contempt,” Contra Costa (Calif.) Times, Feb. 27, 2000.
37 Reporters Committee for Freedom of the Press, “Leggett Freed!”, accessed Jan. 24,
2006; “Held in Jail for Contempt, Novice Writer Loses Appeal,” New York
Times, Aug. 19, 2001.
38 Mike Robinson, “U.S. judge weighs Irish defendant’s
request for tapes,” The Associated Press, June 25, 2003; Mike Robinson, “3
reporters agree to turn over tapes of interview,” The Associated Press, July 4,
2003.
39 Tracy Breton, “Taricani on Trial — Reporter gets
probation — Taricani sentenced to home confinement,” Providence (R.I.)
Journal, Dec. 10, 2004; Tracy Breton, “Judge shortens Taricani’s time in
confinement,” Providence Journal, April 7, 2005.
40 New York Times v. Gonzalez in Bill Kenworthy, “Ongoing confidential-sources cases,” First Amendment Center Online, Aug. 4, 2005; “2nd Circuit OKs look at Times' phone records,” Associated Press, Aug. 1, 2006; “New York Times can withhold phone records from government,” Associated Press, Feb. 24, 2005; Joseph Goldstein, “Court Hands New York Times a Setback in Miller Case,” The New York Sun, Aug. 2, 2006; Susan Schmidt, “Reporters' Files Subpoenaed; New Leak Probe Concerns 2001 Raid on Islamic Charity,” Washington Post, Sept. 10, 2004.
41 Stephen Labaton, “Judge Explains His Dismissal Of Scientist’s Suit Against Times,” The New York Times, Feb. 2, 2007.
42 “D.C. Circuit upholds contempt finding against 4
reporters,” Associated Press, June 28, 2005; Bill Kenworthy, “Ongoing
confidential sources cases,” First Amendment Center Online, accessed Jan.
27, 2006; Pete Yost, “Judge Finds Post Reporter in Contempt,” Associated Press,
Nov. 17, 2005; “5 news
organizations to pay Wen Ho Lee,” Associated Press, accessed June 5, 2006;
“Press’s Wen
Ho Lee appeal denied review,” Associated Press, accessed June 5, 2006.
43 Susan Schmidt and Jim VandeHei, “N.Y. Times Reporter
Released From Jail; Miller to Testify In CIA Leak Probe,” Washington
Post, Sept. 30, 2005; Pete Yost, “Judge lifts contempt order against Judith
Miller,” Associated Press, Oct. 13, 2005; David Johnston, “Contempt Finding Is
Lifted In Case of Times Reporter,” New York Times, Oct. 13, 2005.
44 “Writers could face
more prison time than steroid dealers,” Associated Press, May 10, 2006,
accessed May 16, 2006; Bob Egelko, “Written ruling reiterates plan to jail reporters; Law requires they reveal confidential source, judge says,” San Francisco Chronicle, Sept. 26, 2006; Bob Egelko, “Maximum term, 18 months, sought to ‘send a message,’” San Francisco Chronicle, Sept. 20, 2006. “Chronicle agrees to be held in contempt in Bonds leak case,” Associated Press, Oct. 20, 2006. Accessed Oct. 25, 2006. “Source steps up, lets BALCO reporters off legal hook,” Associated Press, Feb. 15, 2007. Accessed Feb. 22, 2007.
45 Jesse McKinley, “Jail Record Near for Videographer Who Resisted Grand Jury,” New York Times, Feb. 6, 2007; Bob Egelko, “Blogger jailed for defying grand jury sets record; He’s U.S. journalist imprisoned longest in contempt of court,” San Francisco Chronicle, Feb. 6, 2007.
Updated February 2007