Four summers ago then-New York Times reporter Judith Miller went to jail for refusing to testify in the Valerie Plame case. Today U.S. District Judge Reggie Walton of Washington told an ABA panel that he backs creation of a federal shield law that would protect journalists in some cases from being forced to divulge sources.
Let's pause for a quick recap of the relevant history: Walton presided over the trial of vice presidential aide I. Lewis “Scooter” Libby, which arose out of the grand jury investigation into the leak of CIA agent Plame’s classified identity. During that investigation, reporters who refused to testify were threatened with contempt, and Miller went to jail for almost three months. And the investigation was led by special prosecutor (and U.S. attorney for Chicago) Patrick Fitzgerald, who also spoke on today's panel.
“I do believe reporters should have some level of protection,” Walton told the audience. “I don’t think that parties in courts should be able to just willy-nilly extract information from reporters because I think the free flow of information to the American public, frankly, is very important.”
The panel--which also included Chicago Sun-Times reporter Abdon Pallasch and First Amendment attorney Guylyn Cummins of Sheppard Mullin Richter & Hampton in San Diego--discussed legislation in Congress that would give reporters more protection. Pallasch emphasized that a federal shield law is at least as important in civil cases and may actually get less use in criminal cases.
Fitzgerald noted that a federal shield law wouldn’t have kept Miller from going to jail in 2005 because she was defying a judge’s order in a case that related to classified information, which is unlikely to be covered by a federal shield law.
Fitzgerald, who noted he wasn’t speaking for the Obama administration, wouldn’t opine on whether there should or should not be a federal shield law, but hinted that he might find a limited law palatable. Still, he suggested journalists could avoid some problems by being more conservative in granting sources confidential status. He stressed that not even FBI agents searching for Osama bin Laden can guarantee sources that their identities won't be revealed in court.
“If there was a journalism law that treated everyone who wrote for a blog as a journalist, you couldn’t take hundreds of thousands of people and give them the power that no FBI agent trying to catch bin Laden can have,” Fitzgerald said. “It doesn’t mean we feel we can’t protect journalists, it just means we have to do it in balance. There has to be exceptions.”