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Definition of “Freedom of the Press” Under Scrutiny by Courts, Media Itself

Last week, a U.S. judge ordered an American reporter jailed for refusing to disclose her confidential source in the unauthorized disclosure of the name of an undercover officer in the Central Intelligence Agency. The high-profile case has drawn new attention to press freedom in the United States and has called into question the rights journalists believe they have under the U.S. Constitution's First Amendment.

Judith Miller, a reporter for the New York Times newspaper, could spend up to four months in jail after being held in civil contempt of court for refusing to divulge the name of her confidential source.

Matthew Cooper, a reporter with Time Magazine, also faced prison even though his magazine turned over his notes to prosecutors. But Mr. Cooper avoided jail at the last moment, when his confidential source gave him permission to testify before the grand jury.

Matthew Cooper

Special Prosecutor Patrick Fitzgerald is investigating who in the Bush administration leaked the name of the CIA officer to reporters two years ago.

Georgetown University law professor Michael Seidman says the prosecutor's argument for having the reporters testify is simple. "This is information they need in order to find out if a crime has been committed and who committed it. Every citizen is obligated under the law, if they have information relating to a crime, to reveal that information if they are subpoenaed."

Judge Thomas Hogan, who sent Ms. Miller to jail, said she is defying the law and incarcerating her could motivate her to testify. But her boss, New York Times Executive Editor Bill Keller, disagreed. "The law presented Judy with a choice between betraying a trust to a confidential source or going to jail. The choice she made is a brave and principled choice and it reflects a valuing of individual conscience that has been a part of this country's tradition since its founding."

Professor Seidman counters, "There is a lot of sanctimonious talk in the press about the public's right to know. That's more than a little ironic. What's standing in the way of the public knowing right now is the press. The reason we don't know who tried to destroy the career and maybe the life of a loyal government agent, is because the press is suppressing that information."

This case has angered journalists and First Amendment supporters in the United States, including Lucy Dalglish of the Reporters Committee for Freedom of the Press. "I think we are going to see more journalists being used as investigative tools by the government, we are going to see more sources saying, 'I'm sorry, I can't talk.' "

Before being jailed, Judith Miller explained the need for confidential sources. "From Watergate to the financial scandals of Enron to the abuses that took place in Abu Ghraib prison, all of these stories required confidential sources."

The most famous American case of a reporter promising to keep a source's name secret involved Mark Felt. For more than 30 years, Washington Post reporters Bob Woodward and Carl Bernstein refused to divulge his identity, arguing the only way a reporter could get sensitive information was by promising not to reveal the source. Information from Mr. Felt, a top official in the Federal Bureau of Investigation, at the time, eventually forced President Richard Nixon to resign. Recently, it was Mr. Felt -- not the reporters -- who revealed he was the famous "Deep Throat" source in the White House scandal known as “Watergate.”

Diana Huffman, a professor of ethics and communications law at the University of Maryland, cautions that without the ability to protect sources, journalists will not be able to do their jobs.

"So this cuts to the heart of what press freedom is, which allows those of us who are reporters to have confidential sources and play a watchdog role. If you can't play that role, it really eviscerates what the press is all about in this country."

Most states have some protections for journalists seeking to maintain the confidentiality of sources.

Ms. Huffman explains. "But there isn't a federal privilege, and that's the problem that we are facing now, that it's in federal courts that they are seeking to subpoena reporters."

Media organizations are trying to win support from the U.S. Congress to enact a national shield law that would protect journalists seeking to maintain the confidentiality of sources.