When Attorney General Jeff Sessions proclaimed that he might jail reporters who refuse to divulge their sources, it was no empty threat: A 1972 Supreme Court decision backs him up.
The court ruled in Branzberg v. Hayes that reporters are just like anyone else when subpoenaed to testify before a federal grand jury, and the First Amendment gives them no special rights to refuse.
That’s why New York Times reporter Judith Miller was jailed during President George W. Bush’s administration.
Miller was served with a federal grand jury subpoena by a special prosecutor demanding that she testify and reveal the identity of the source who told her that Valerie Plame was an undercover CIA operative.
Miller refused to identify her source to the grand jury, and a federal judge jailed her in 2005 for nearly three months for contempt of court. She was released from jail only after her source, I. Lewis “Scooter” Libby, chief of staff for Vice President Cheney, volunteered that Miller could testify and identify him as her source.
The Times spared no expense in arguing that Miller should not be jailed for refusing testify. But the newspaper’s lawyers were boxed in by the Branzberg decision.
The Times also tried a separate argument, saying that reporters are protected from federal grand jury subpoenas under common law, which is a legal rule created by a series of court decisions, protecting news gathering. But the U.S. District Court of Appeals rejected that argument in 2005 and the Supreme Court declined to hear her case.
There is one other protection for reporters. The Justice Department adopted a set of guidelines that limits the power of federal prosecutors to use subpoenas and threaten jail for reporters who refuse to reveal sources.
Under these Justice Department media guidelines, federal investigators and prosecutors are required to try to find the government leakers and avoid subpoenaing reporters to protect “newsgathering.” Even when reporters are facing federal subpoenas, prosecutors are required to contact the reporters to give them a chance to negotiate a voluntary release of information involving confidential sources.
“We are reviewing the entire process of how we conduct media leak investigations by responding to issues that have been raised by our career prosecutors and agents,” Deputy Attorney General Rod Rosenstein told reporters at a briefing after Friday’s news conference by his boss, Sessions.
If Sessions decides to give free rein to federal prosecutors to serve reporters with federal grand jury subpoenas, reporters could be jailed for more than two years if they refuse to divulge the identities of their confidential sources.
One reason Times reporter Miller decided to testify is because the special prosecutor could have extended her jail term by two more years.
Press advocates were quick to condemn the Justice Department’s announcement about possible changes to its subpoena rules for the press.
“What the attorney general is suggesting is a dangerous threat to the freedom of the American people to know and understand what their leaders are doing, and why,” Reporters Committee for Freedom of the Press Chairman David Boardman said in a prepared statement.
The ACLU tweeted: “Can anyone seriously argue our country would be better off if the public received all of its information through official channels alone?” and “A crackdown on leaks is a crackdown on the free press and on democracy as a whole.”
Can anyone seriously argue our country would be better off if the public received all of its information through official channels alone?
— ACLU (@ACLU) August 4, 2017
A crackdown on leaks is a crackdown on the free press and on democracy as a whole.
— ACLU (@ACLU) August 4, 2017