Can a journalist be forced to reveal confidential sources?

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Can a journalist be forced to reveal confidential sources? The answer appears to be no...as long as that journalist is willing to go to jail.

In 1972, William Farr, a reporter for the Los Angeles Times, was sent to jail for 46 days for refusing to identify his confidential sources for an article he wrote about the Charles Manson murder trial. In 2001, a freelance writer Vanessa Leggett served 168 days in jail for refusing to disclose information obtained during her research for a book on a Texas murder case.

New York Times reporter Judith Miller joined the ranks of these journalists when she too was ordered to jail by U.S. District Judge Thomas F. Hogan for refusing to reveal her source in connection with a government investigation. Federal prosecutors allege that members of the Bush administration leaked the name of a CIA operative as an act of retribution after the operative's husband wrote an article criticizing the Bush administration. Prosecutors believe Miller may know the identity of the person who leaked the information.

In connection with the same investigation, another New York Times reporter, Matthew Cooper, escaped jail by agreeing to testify at the last minute, with the blessing of his confidential source. The source, who had previously requested anonymity, encouraged Cooper to testify.

Journalists consider a promise to protect the identity of a confidential source a sacred trust. This relationship is so sacred that legal battles often arise out of a reporter's insistence on protecting his or her source in the face of judicial subpoenas commanding otherwise.

Under the First Amendment, laws "abridging the freedom...of the press" are invalid. Most states also have their own laws in place which protect reporters from having to disclose their sources and, in certain cases, unpublished materials. Some states have even included "free press" provisions in their state constitutions.

The Supreme Court however has not been as protective of the press. In fact, the Court has largely limited the press over the course of the last thirty five years. Back in 1972, the Supreme Court ruled that a journalist had no right to refuse testimony where he or she had witnessed criminal activity. The Court also since held that a journalist who fails to comply with a subpoena can be held in contempt of court and fined or even sent to jail.

What then does Judith Miller's case mean for the future of the free press?

Journalists argue that being forced to reveal confidential sources and to disclose confidential information "infringes on the newsgathering process" and erodes the independence of the news media from the government. Not only that, the disclosure of a confidential source without that source's consent may subject a journalist to civil liability for breaching their promise; and journalist have no protection from such lawsuits thanks to the Court's decision in Cohen v. Cowles Media case.

Legal analysts feel that Miller's situation will not only make it more difficult for journalists to do their jobs, but will also make potential sources less likely to be willing to share what they know about government wrongdoing. They also argue that, rather than doing their own job of investigating a case thoroughly and properly, prosecutors will use the law to their advantage to instead force reporters to share what they have learned through their news investigations.

Judith Miller's critics argue that she has gone beyond protecting a confidential source. They feel that she is protecting someone who may have intentionally endangered the life of an undercover CIA agent, a violation of federal law.

The New York Times has however expressed full support of Miller's decision, indicating in a written statement that: "There are times when the greater good of our democracy demands an act of conscience. Judy has chosen such an act in honoring her promise of confidentiality to her sources."

After the Supreme Court refused to hear Miller's case, Miller was sent to an detention center in Alexandria, Virginia, where she will remain for the duration of the government investigation, unless she decides to reveal her source. Judge Hogan has intimated that, even then, Miller may be subject to punishment for criminal contempt of court based on what he terms an obstruction of justice, which could result in several more months in jail.