http://foi.missouri.edu/whistleblowing/judgesskeptical.htmlJudges Skeptical of First Amendment Protection for Reporters in C.I.A. Leak Inquiry
By ADAM LIPTAK
New York Times
December 9, 2004
Judge Henderson was appointed by the first President George Bush, Judge Sentelle by President Ronald Reagan and Judge Tatel by President Bill Clinton.
snip:
The reporters were held in contempt of court in October by Judge Thomas F. Hogan, the chief judge of the Federal District Court here. Judge Hogan ordered them jailed until a grand jury investigating the disclosure of the identity of a covert C.I.A. officer, Valerie Plame, completed its work or for 18 months, whichever was shorter. He suspended the sentences during the appeal.
The appeals court did not indicate when it would rule. Lawyers involved in the case said they expected a decision as soon as weeks from now, which would be fast by judicial standards.
If the reporters lose, they may ask the full court, known as the United States Court of Appeals for the District of Columbia Circuit, or the Supreme Court to hear the case. The reporters, who attended the arguments on Wednesday, would most likely remain free until all appeals were concluded.
snip:
Judge Tatel was the only judge who seemed prepared to consider a separate basis for protecting the journalists. The reporters had relied on a 1996 Supreme Court case that recognized legal protection for confidences that patients tell their psychotherapists. Similarly, their lawyers argued that the fact that 49 states and the District of Columbia offered journalists some protection meant that federal courts should recognize a similar protection. The argument, based on federal common law, avoids Branzburg and the First Amendment.
Judge Tatel was impatient with Mr. Abrams's contention that this second sort of protection should be absolute. Instead, he suggested that the protection should turn on a balancing of the importance of the information in the grand jury's investigation, its availability from people other than journalists and perhaps the importance of the case itself against the societal interest in the information confidential sources provide.
snip:
Judge Sentelle appeared skeptical that protection for journalists was warranted or practical, whether under the First Amendment or the common law. "You're asking us to create not only a new common law privilege but also a privilege greater than any other privilege known to the law," he said. "You just shut down leak investigations if we give you this privilege."