In 1848, the New York Herald's John Nugent became the first American reporter incarcerated for refusing to identify a confidential source. "I consider myself bound in honor not to answer," Nugent declared when senators asked how he had gotten a secret draft of a treaty with Mexico. They ordered him held for contempt. Lacking a cell, the Senate's sergeant-at-arms took Nugent home with him at night and kept him in an empty committee room during the day. Nugent filed articles datelined "Custody of the Sergeant-at-Arms," according to Senate historian Donald Ritchie, and the Herald doubled his salary while in confinement. After a month, the Senate gave up, released Nugent, and voted to pay the sergeant-at-arms $250 for his trouble.
A century and a half later, Jeff Gerth and James Risen of the New York Times are risking incarceration to protect confidential sources. Wen Ho Lee, plaintiff in a Privacy Act lawsuit against the FBI, the Justice Department, and the Energy Department, is trying to discover who leaked information about him to the Times and other media outlets. Some of the potential culprits claim memory lapses, so Lee's attorneys want to interrogate the reporters.
That's all right with federal District Judge Thomas Penfield Jackson, who's hearing the case. Judge Jackson ruled in October that the journalists must submit to depositions and "truthfully answer questions" about their sources. In depositions last week, Gerth and Risen "answered the questions," a Times vice president told Reuters, "although on some of the questions they chose to take advantage of their First Amendment privilege on identifying sources."
Whether journalistic disobedience lands Gerth and Risen in jail depends in part on judicial disobedience. The Supreme Court says there is no "First Amendment privilege on identifying sources," but lots of lower courts disagree. They've gone off on a frolic of their own, and the Supreme Court hasn't reined them in. In many courtrooms, Ben Bradlee's breezy assertion to American Journalism Review in 1998—"There is a privilege whether the Supreme Court says so or not"—is an accurate summary of the law.
The Supreme Court addressed the issue of reporter's privilege in Branzburg v. Hayes (1972), which combined three cases where reporters had refused to disclose confidential matters to grand juries. Two of the reporters had covered the Black Panthers; the third had written about narcotics users. In an opinion by Justice Byron White, the court ruled that the reporters must testify. "Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination," the justices said. "We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." The court did acknowledge a tiny exception: "Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources" might violate the First Amendment.
The next day's New York Times reported that this "sweeping decision … contained a firm rejection of the theory that the First Amendment shields newsmen under certain circumstances from having to testify." That was Branzburg in 1972; Branzburg now looks altogether different. As the Times noted last week, the case "has been interpreted as setting forth a series of tests for compelling a reporter's testimony, including whether the reporter's information goes 'to the heart' of a particular case and cannot be obtained through other means."
So, how did the Branzburg metamorphosis come about? The answer lies in an oddball separate opinion by Justice Lewis F. Powell Jr., a newcomer to the court at the time. Justice Powell signed on to Justice White's opinion, thereby making it the decision of the court, but only after "much hesitation," according to Bob Woodward and Scott Armstrong's The Brethren. Powell, who became famous (or notorious) for persistently seeking the middle ground, decided to file a concurring opinion. It reads like a concurrence that slowly mutates into a dissent.
The majority opinion left the First Amendment door slightly ajar; Justice Powell flung it wide open. "As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated," he wrote. Consequently, a reporter who thinks "his testimony implicates confidential source relationships without a legitimate need of law enforcement" can move to quash the subpoena. In response, the judge must "balance the competing interests on their merits"—the need for the testimony versus the reporter's "asserted claim to privilege." By the end of Justice Powell's short opinion, the majority's narrow, bad-faith exception covering harassment of the press had ballooned into a universal balancing test.
Today, the result in many lower courts is precisely what the Branzburg majority rejected: a First Amendment testimonial privilege for reporters. In some courtrooms, the privilege extends beyond confidential sources and other newsroom secrets to embrace anything learned in the course of gathering news. The privilege is widely recognized in civil litigation like Wen Ho Lee's case as well as in criminal trials. It's sometimes even recognized in grand-jury investigations like Branzburg. (The issue rarely arises in federal grand juries, though, because Justice Department regulations discourage prosecutors from subpoenaing reporters.)
Although Justice Powell's concurrence often supplies the rationale for disregarding the Branzburg majority opinion, most judges don't adopt the Powell balancing test. Instead, they apply a more stringent test under which a journalist can be forced to testify only if the information is essential to the case and there's no other reasonable way to get it. The outlines of this test (specific formulations vary) come from a Branzburg dissent written by Potter Stewart and signed by two other justices. (The other dissenter, First Amendment absolutist William O. Douglas, expressed the solitary view that "a newsman has an absolute right not to appear before a grand jury.") Justice Powell rejected the Stewart approach as imposing unduly "heavy burdens of proof," yet these lower courts blend the dissent into the concurrence to get the law of the land.
Supreme Court justices aren't crazy about being second-guessed by subordinate judges. "[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be," the justices said in a 1982 case. To be sure, the Supreme Court sometimes tiptoes away from a precedent without formally overruling it, but not in the case of Branzburg. In the unanimously decided case University of Pennsylvania v. EEOC (1990), for instance, the court summarized Branzburg as having "rejected the notion that under the First Amendment a reporter could not be required to appear or to testify as to information obtained in confidence without a special showing that the reporter's testimony was necessary." Even so, the justices haven't agreed to hear another reporter's privilege case, which could provide the opportunity to chastise the wayward lower courts. In this realm, the Supreme Court seems willing to tolerate a bit of anarchy.
The anarchy may be waning, though. In a Seventh Circuit decision in August 2003, Judge Richard Posner criticized rulings that "essentially ignore Branzburg" or even "audaciously declare that Branzburg actually created a reporter's privilege." All subpoenas must be reasonable, Judge Posner wrote, and "[w]e do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist." Branzburg's ghost is rising.
That's bad news for the reporters subpoenaed in the Wen Ho Lee case and potentially for those snarled in other leak investigations (think Robert Novak). If Gerth and Risen won't name their sources, Judge Jackson can order them jailed for contempt of court. They can appeal to the D.C. Circuit, which might recognize a reporter's privilege, as it has done before, or might follow Judge Posner's lead, reread Branzburg, and leave them in jail.
For how long? Not for any duration approaching the nine months Wen Ho Lee spent in solitary. Vanessa Leggett, a largely unpublished Houston freelancer, spent five and a half months in prison for refusing to answer questions in a criminal investigation. (Softening the blow somewhat, she then sold her true-crime book to Crown Publishers for a reported $600,000.) Card-carrying reporters rarely get confined for long. Of 17 journalists imprisoned between 1984 and 1998, according to the Reporters Committee for Freedom of the Press, none was jailed for more than a month (John Nugent's term in 1848), and nine were jailed for less than a day.
In any event, Gerth and Risen aren't likely to talk. In courtrooms where Branzburg means what it says, reporters uphold their honor by keeping silent, and judges uphold theirs by imposing brief incarceration. It's no battle of wills: The judges don't expect the reporters to cave, but they want to vindicate judicial authority through a token punishment. So, even without a First Amendment privilege in law, reporters get special treatment in practice. It's a compromise. Justice Powell would be pleased.