The revelation of "Deep Throat's" identity provides a powerful reminder of the importance of reporters being able to rely on confidential sources and the lack of any federal law providing protection for this secrecy in federal courts.
The extent of the Nixon White House's involvement in the Watergate cover-up never would have been exposed without W. Mark Felt, now revealed to have been "Deep Throat," providing crucial information to Washington Post reporter Bob Woodward. The reality is that often reporters cannot obtain key information without the ability to promise anonymity to sources who are afraid for their jobs or even their safety.
Unfortunately, while most states have shield laws allowing reporters to protect the confidentiality of their sources, no such law exists at the federal level. This means that reporters can be subpoenaed to testify before grand juries and at trials and forced either to reveal their sources or goal to jail for contempt.
A powerful example of this is the contempt sentence now facing Judith Miller of The New York Times and Matthew Cooper, the White House correspondent for Time magazine. They were held in contempt for refusing to reveal to a grand jury whether they had confidential conversations and, if so, with whom.
Their contempt sentences arose from an investigation of syndicated columnist Robert Novak revealing that Valerie Plame was a CIA agent. In his State of the Union address in January 2003, President George W. Bush said that Iraq had tried to get significant quantities of uranium from Africa. Several months later, former Ambassador Joseph Wilson wrote an op-ed column saying that he was sent by the CIA to Iraq in 2002 and found no evidence that the country was attempting to buy uranium from Niger. Soon after, Novak, in a column, revealed that Wilson's wife, Valerie Plame, was a CIA agent.
After Novak's column was published, various media accounts reported that other reporters had been told by government officials that Wilson's wife worked at the CIA monitoring weapons of mass destruction, and that she was involved in her husband's selection for the mission to Niger. Reporters, including Miller and Cooper, were subpoenaed by a special prosecutor to testify before a grand jury as to the content of their communications and their sources. They refused and have been held in contempt. On Feb. 15, 2005, the United States Court of Appeals ruled against them and they will go to jail unless the Supreme Court agrees to hear their case.
The problem is that in 1973 -- in Branzburg v. Hayes, a 5-4 decision -- the Supreme Court ruled that reporters have no right under the First Amendment to keep their sources secret. Both the federal district court and the United States Court of Appeals in the Miller and Cooper case declared: "A reporter called to testify before a grand jury regarding confidential information enjoys no First Amendment protection."
Most states have adopted statutes that allow reporters to keep their sources confidential in state court proceedings. But these laws, of course, have no application in federal courts. Because there is no federal shield law, any reporter can be forced to disclose his or her sources in federal court or face jail.
The reality is that reporters often can obtain crucial information to inform the public about important matters only with confidential sources. Key information about corruption in government or about business practices that threaten public safety frequently can be obtained only by those who are on the inside. But they face being fired, or sometimes worse, if their identity is revealed.
Protection for reporters in federal courts is long overdue. Ideally, the Supreme Court will grant the petition for review by Miller and Cooper that is now pending and reconsider its decision from three decades ago. The Court will decide this month whether to hear the case. The Court should grant review and use the case as a vehicle for concluding that the First Amendment's commitment to an informed public, and to open and robust debate about issues of public importance, requires that reporters be able to keep their sources confidential.
Whatever the Supreme Court does, it is long overdue for Congress to enact a federal shield law. Most states have had them for decades and they provide a model for Congress to use in writing an effective federal statute.
Without the assistance of W. Mark Felt, felonies committed by President Richard Nixon and his top aides never would have been revealed. The publicity surrounding the revelation of Deep Throat's identity should be an impetus for action to make sure that such sources come forward in the future and that reporters will rely on them.