SPECIAL REPORT

Shields and Subpoenas:

The reporter's privilege in federal courts

As reporters continue to face contempt charges in federal court cases around the country, Congress is taking a serious look at a reporter's shield law.

Updated: 11/19/2009

These are critical times for the reporter's privilege. Several courts have found that no privilege protects journalists before grand juries, which has resulted in the jailing of The New York Times' Judith Miller and freelance blogger Josh Wolf, and a contempt finding against former USA Today reporter Toni Locy. Pulitzer Prize winning reporter, David Ashenfelter, of the Detroit Free Press, was the latest to face possible contempt charges for protecting his sources.

Two San Francisco Chronicle reporters were found in contempt of court in connection with their reporting on steroids in professional sports, and a Rhode Island journalist sat under home confinement for criminal contempt of court for not revealing a source. Many more journalists face sanctions for refusing to obey court orders to reveal their sources or materials, and more will follow. A federal shield bill has gone further than any previous attempts. A proposal was overwhelmingly passed through the House of Representatives and the Senate Judiciary Committee during the 110th Congress and it has been reintroduced this session.

Jump to one of the sections below:

• Number of federal subpoenas

• Update on federal shield law efforts

• The Privacy Act and Confidential Sources

  • Convertino lawsuit subpoena (David Ashenfelter)

  • Steven Hatfill lawsuit subpoenas (Toni Locy, James Stewart)

  • Wen Ho Lee lawsuit subpoenas

• James Risen grand jury subpoena

• Josh Wolf grand jury subpoena

• BALCO grand jury investigation

• Plame investigation

• Islamic charities grand jury subpoenas

• Taricani home confinement

• Lynne Stewart trial subpoenas

• A list of jailings of U.S. reporters for contempt since 1984.

How many reporters receive subpoenas each year? Is that number rising?

The Reporters Committee receives many inquiries about how many subpoenas are issued to journalists within any given year in the United States, and about whether that number is rising. The answer to those questions is that we simply cannot know for certain. Unfortunately, there is no way of recording which subpoenas are issued to members of the news media on the national level, although the Department of Justice guidelines (28 C.F.R. 50.10) do mandate that any federal subpoena issued to a member of the news media must be approved by the Attorney General.

In response to a 2006 Freedom of Information request submitted to Criminal Division of the U.S. Department of Justice, the Reporters Committee was informed that "approximately 65 requests for media subpoenas have been approved by the Attorney General since 2001" pursuant to the guidelines. The response listed the following numbers as their breakdown by year, although the Reporters Committee makes no guarantee that this response is accurate:

The Civil Division of the Department of Justice informed the Reporters Committee that they had not submitted any media subpoenas to the Attorney General for approval in recent years, and the Civil Rights Division indicated likewise.

Again, the Reporters Committee does not guarantee that these numbers represent accurate totals. Please also note that these numbers do NOT include any subpoenas not issued pursuant to the guidelines or subpoenas issued in non-federal proceedings.

The Reporters Committee attempt to track as many new media subpoenas and shield law efforts as possible. If you are aware of a reporter who has been subpoenaed, or if you have any additional information or updates surrounding subpoenas to reporters, please let us know. Your help is critical in our efforts to keep journalists informed.

For more information about recent subpoenas to reporters see “Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media” available  here. 

Federal shield law efforts

Status:

· The Senate shield bill, S. 448, was passed by the Judiciary Committee on Dec. 10, 2009. Initially, White House concerns with the bill held up passage, but compromise language was agreed upon.

· The House of Representatives passed H.R. 985, the "Free Flow of Information Act of 2009," on March 31, 2009 by a voice vote.

Summary of the proposed legislation:

The House of Representatives passed the Free Flow of Information Act on March 31, 2009 (H.R. 985). The bill was passed by a voice vote under a suspension of the rules, a typical procedural used to pass non-contrversial bills. The Senate is considering another version of the law (S. 448), which passed the Judiciary Committee in December, but may be kept off the Senate floor by the expected debates over health care and other issues.

Both President Barack Obama and Attorney General Eric Holder have previously expressed support for a federal shield law. White House concerns about the bill initially threatened to derail progress, but a compromise was reached in late October. In a very unusual move, the Obama Administration publicly endorsed the bill while it was still under consideration by the Judiciary Committee; the administration typically only issues such statements about bills that have made it to the chamber floor.

The House and Senate versions of the bill are different. Although both provide a qualified privilege to reporters and both would apply in both criminal and civil contexts, the two proposals vary greatly on what information would fall under its purview and who could call on the shield for protections.

The Senate version of the bill protects only the identity of confidential sources and records, communications data, documents or information obtained upon a promise of confidentiality. The House bill creates a much more expansive scheme, extending protection not only to confidential sources and information, but to any documents or information obtained during the newsgathering process.

The Senate bill, after many amendments, currently takes a broad stance in defining who would fall under the protected class. The measure covers any journalist who engages in "the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public." (However, several Democratic senators have expressed an interest in narrowing the class of covered persons before the bill is brought to the Senate floor.) Meanwhile, the House bill takes a more restrictive approach. Under its version, journalists can only claim protection from federal subpoenas if their work is done "for a substantial portion of the person's livelihood or for substantial financial gain."

Both versions of the bill are rife with exceptions. The House legislation provides specific exceptions where disclosure is necessary to prevent an act of terrorism or imminent death or significant bodily harm; where disclosure is necessary to identify a person who has released some categories of private business and medical information; and where the reporter witnesses criminal or tortious conduct. The proposed legislation in the Senate does not protect a reporter where the sought-after information would assist in preventing an act of terrorism or other articulable harm to the national security, and also offers exceptions where a journalist witnesses allegedly criminal or tortious conduct, and where the sought after information can prevent or mitigate death, kidnapping, or substantial bodily harm.

The Senate version also contains a public interest balancing test, where the public interest in the release of confidential source information is balanced against the interest in allowing journalists to keep it confidential. The balancing test does not apply in national security and terrorism cases. In criminal cases, the burden is on the journalist to demonstrate that the public interest in confidentiality is more important than the interest in disclosure, while in civil cases, the burden is on the subpoenaing party.

The shield bill also came close to passing in the last Congress. In October 2007, the House of Representatives overwhelmingly voted to pass Free Flow of Information Act of 2007 (H.R. 2102) by a 398 to 21 vote. The Senate Judiciary Committee sent a similar provision (S. 2035) to the Senate floor. The full Senate has not yet addressed the bill and the bill cleared the Senate Judiciary Committee by a vote of 15-2. The bill died as the 110th Congress came to a close. The Bush administration was particularly obstructive. As soon as the House bill passed last fall, the former president threatened to veto it.

History:

• S. 448 was introduced on Feb. 13, 2009.

• H.R. 985 was introduced on Feb. 11, 2009.

• H.R. 2102 was introduced on May 2, 2007. The Committee on Judiciary sent it to the House floor on October 10, 2007. The House of Representatives passed the bill by a recorded vote of 398 – 21 on October 16, 2007.

• S. 2035 was introduced on September 10, 2007. The Committee on the Judiciary sent it to the Senate floor, with amendments, on October 22, 2007, when it was placed on the Senate Legislative Calendar under General Orders. It died in the Senate without a vote before the closure of the 110th Congress.

Bill status and tracking through Library of Congress' Thomas system, including Congressional Record references:

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The Privacy Act and Confidential Sources

In recent years, the Privacy Act has been used in an attempt to force reporters to reveal their confidential sources. The 1974 law was enacted as a way to protect the privacy of government employee’s personnel records. Several former federal employees have sued the government for violating the Privacy Act when information about internal investigations has been leaked to press. In the course of their Privacy Act lawsuits, these plaintiffs have subpoenaed reporters for the names of the confidential government sources who allegedly leaked the information. This is a misapplication of the Privacy Act in a way that is detrimental to the news media.

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Convertino v. Department of Justice (David Ashenfelter)

In 2004, Detroit Free Press reporter David Ashenfelter reported about a government investigation into former Assistant U.S. Attorney Richard Convertino's conduct during a post Sept. 11, 2001 terrorism trial in Detroit. Shortly after, Convertino sued the Department of Justice under the Privacy Act for leaking information about the investigation to the press. In 2006, Convertino subpoenaed Ashenfelter seeking his confidential sources as a way to bolster his Privacy Act lawsuit.

In September 2008, Judge Robert Cleland of the U.S. District Court for the Eastern District of Michigan ordered Ashenfelter to testify about his sources. Cleland held that the Sixth Circuit does not recognize a First Amendment reporter’s privilege. Ashenfelter responded by filing a motion asking Cleland for a protective order that would protect him from testifying. But Judge Cleland ruled in November that Ashenfelter must testify because a First Amendment reporter’s privilege does not protect him.

Ashenfelter was scheduled to be deposed by Convertino’s attorneys in December. Since the First Amendment had not worked to protect him, Ashenfelter invoked the Fifth Amendment right to be free from self-incrimination and refused to testify.

Convertino responded by asking Judge Cleland to hold Ashenfelter in contempt for his refusal to testify. He argued that the same contempt fines that were forced on reporter Toni Locy (see below), should be imposed on Ashenfelter. In his reponse papers, Ashenfelter argued that his invocation of the Fifth Amendment was correct. He cited several crimes which he could be prosecuted for if he were to testify and reveal his sources. Among them: conspiracy for any crime committed by a government official; violations of the Privacy Act; perjury; false statements; obstruction of justice; theft and receipt of government records; violations of the Espionage Act; or Michigan state laws that criminalize possession of stolen material.

On February 11, 2009, Judge Cleland held a hearing to determine whether to hold Ashenfelter in contempt. A few weeks after, he released an opinion ordering Ashenfelter to further explain why invoking the Fifth Amendment was appropriate. He ordered Ashenfelter to either re-testify at another deposition, or to submit a sealed in camera affidavit to the court explaining his reasons for invoking the Fifth Amendment. Ashenfelter chose the latter and submitted the affidavit in early March. In late March, Ashenfelter's attorneys filed a motion with Cleland asking the judge to review the affidavit and make a determination about whether his invocation of the Fifth Amendment was justified. He also asked the judge to certify the question for appeal to the U.S. Court of Appeals in Cincinatti (6th Circuit). Judge Cleland denied Ashenfelter's request.

In April, Ashenfelter appealed his case to the U.S. Court of Appeals in Cincinatti (6th Circuit), and asked the Court to step in and prevent Judge Cleland from deposing him. On April 16, 2009, the Court of Appeals denied Ashenfelters appeal and ordered the depsotion to continue.

At the April 21, 2009 deposition, Ashenfelter again invoked the Fifth Amendment right to be free from self-incrimination. This time, Judge Cleland ruled that the Fifth Amendment did privilege Ashenfelter from having to testify. Ashenfelter was not ordered to reveal his sources.

Shortly after that ruling, Convertino renewed his motion to compel the Free Press to turn over Ashenfelter's notes and sources. The newspaper continues to fight that motion. Convertino also filed a motion with Cleland arguing that Ashenfelter waived the Fifth Amendment privilege. Ashenfelter responded and the judge's decision is pending.

Documents:

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Hatfill v. Mukasey (Toni Locy, James Stewart)

Status: Hatfill and the Department of Justice settled the lawsuit on June 27. The U.S. Court of Appeals (D.C. Cir.) dismissed Locy’s appeal of the contempt order as moot on Nov. 17. The lower court vacated its contempt order on Feb. 11, 2009.

Former Army scientist Steven J. Hatfill sued the several government agencies and officials under the Privacy Act after anonymous sources identified him to the media as a "person of interest" in the investigation into the 2001 anthrax mailings that killed five people and sickened 17 others. After the Department of Justice claimed that submitting to Hatfill's discovery requests seeking to identify those sources would compromise the ongoing anthrax investigation, Judge Reggie B. Walton ordered as many as 100 federal agents to provide blanket waivers to release any media organizations from promises of confidentiality. In Dec. 2004, Hatfill subpoenaed a number of news organizations to provide documents and testimony in his case.

At least 13 subpoenas were initially served subpoenas in the case. Four subpoenas – served on National Public Radio, The Baltimore Sun, CNN and UPI – were voluntarily withdrawn early on. Another nine subpoenas – served on ABC, CBS, NBC, The Associated Press, The Washington Post, Newsweek, Gannett Co., The Los Angeles Times, and former Baltimore Sun reporter Scott Shane – were contested primarily in the U.S. District Court in Washington, D.C. (the Times subpoena was challenged in federal court in Los Angeles). Another subpoena was served in federal court in New York on Don Foster, a professor at Vassar College who wrote about the FBI's investigation.

In late May 2005, after the government made federal employees available as witnesses, Hatfill voluntarily withdrew the remaining subpoenas against the news media, but later served them again.

In Aug. 2007, Walton granted a motion to compel the testimony of six journalists – Newsweek's Michael Isikoff and Daniel Klaidman, ABC's Brian Ross, The Washington Post's Allan Lengel, CBS's James Stewart and USA Today's Toni Locy. Three of those journalists' anonymous sources – former United States Attorney for the District of Columbia Roscoe Howard; Dan Seikaly, the former chief of the Criminal Division of that office; and Ed Cogswell, the former unit chief of the FBI's national Press Office – subsequently released the journalists from their promises of confidentiality and voluntarily appeared for depositions. Despite identifying those sources, Hatfill sought contempt sanctions for Stewart, who refused to identify any additional sources, and Locy, who does not remember which of her sources provided specific information related to Hatfill.

Walton found Locy in contempt in late Feb. 2008, and formalized the penalty in a March 7 order. The judge ruled that until she discloses all of her sources for her anthrax attack-related stories, Locy will face fines starting at $500 per day for the first seven days, $1,000 per day for the next seven days, and $5,000 a day for the next seven. If she still has not disclosed her sources at that time, "she must appear before this court on April 3, 2008, at 1:30 pm, for further consideration of what additional measures should be taken to bring about her compliance." Walton decided not to stay those fines pending Locy's appeal because he decided she is unlikely to prevail, and held that Locy cannot receive any assistance in paying the fine -- not only from her former employer but from any person. Walton has also delayed deciding whether to find Stewart in contempt while the judge considers a motion for reconsideration from the retired journalist.

On Tuesday, March 11, a panel of the U.S. Court of Appeals (D.C. Cir.) stayed the contempt fine pending her appeal. On Friday, March 14, the court granted Hatfill's motion to expedite the appeal. Locy's brief was filed March 28, Hatfill's brief was filed April 11, and Locy's reply was submitted on April 18. Oral arguments on the appeal were heard on Friday, May 9. The panel aggresively questioned Hatfill's attorney as to whether any evidence obtained from her or her sources was necessary to their case.

On Friday, June 27, Hatfill's attorneys announced to both the District Court and the Court of Appeals that they had reached a settlement with the government. Under the terms of the settlement, the government will immediately pay Hatfill $2.8 million, and then will pay him another $3 milion over 20 years through an annuity contract. As of the end of the day on June 27, there was no word on whether the contempt order would be withdrawn or the appeal would be dismissed as moot.

In September 2008, Hatfill filed a motion to dismiss Locy’s appeal of the contempt order. The U.S. Court of Appeals (D.C. Cir.) granted that motion on Nov. 17, ruling that the case was moot because of Hatfill’s settlement with the government. Based on the appellate order, the district court judge vacated the contempt order on Feb. 11, 2009.

Documents:

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In re Grand Jury Subpoena (James Risen)

Status: A federal grand jury subpoenaed New York Times reporter James Risen to ascertain the identity of confidential sources for his 2006 book "State of War." Risen is fighting the subpoena but the case is under seal.

Reporters Involved:

A federal grand jury in Alexandria, Va. subpoenaed Risen in late January 2008, seeking to identify the confidential sources relating to a specific chapter in the book. The chapter asserted that the Central Intelligence Agency had unsuccessfully tried to infiltrate Iran's nuclear program dating back to the Clinton administration. Risen filed a motion to quash the subpoena on Feb. 19. He has continued fighting the subpoena and has not testified. However, the entire case is under seal.

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In re Grand Jury Subpoena (Josh Wolf)

Status: Case concluded; blogger Josh Wolf was released from prison on April 3 after spending 226 days behind bars in civil contempt of court.

Josh Wolf, a freelance video blogger, videotaped a 2005 anarchist protest in San Francisco that coincided with the G-8 summit in Scotland. Wolf sold portions of his video to televisions stations and posted excerpts on the Internet. Federal officials suspected that Wolf's unaired video contained footage of protesters damaging a San Francisco police car.

Federal officials asserted that the damage to the police car was a federal matter because the San Francisco police department receives some federal funding.

Wolf was subpoenaed and ordered to turn over the unaired portions of his tape. Because the subpoena came from a federal court, he could not claim the protection of California's state shield law. Wolf refused to comply with the subpoena and was held in contempt of court. He went to prison on Aug. 1, 2006, and his attorneys appealed the contempt order. On Sept. 1, 2006, Wolf was released from prison on bail, pending a review of the appeal. On Sept. 8, an appeals court panel affirmed the lower court's order of contempt. Wolf returned to prison on Sept. 22 and remains incarcerated.

Wolf's attorneys sought an en banc hearing before the entire 9th Circuit Court of Appeals, but the court declined to hear the case. Another motion for Wolf's release was filed at the the trial court level in January 2007, but motion was unsuccessful.

On Feb. 6, 2007, Wolf became the longest-jailed American journalist for contempt of court in recent history. (Author/journalist Vanessa Leggett, who previously held the record, spent 168 days in prison in 2001 for refusing to reveal her sources.)

Wolf reached an agreement with prosecutors at a mediation conference on April 2, 2007. Prosecutors finally agreed to disclose the questions that they wanted to ask Wolf on the stand - whether Wolf witnessed or had any knowledge of an assault on a police officer or damage to a police car that occurred at the 2005 rally. In a sworn statement, Wolf said that his response to both questions was no.

Additionally, investigators wanted all of Wolf's video footage from the rally, including the outtakes. Wolf agreed to post all of the footage of the rally on his blog.

On April 3, Wolf was released after spending more than seven months behind bars.

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BALCO grand jury investigation

Status: Case concluded; all subpoenas, contempt findings and sanctions have been withdrawn.

Reporters involved:

This case stemmed from a San Francisco grand jury investigation into alleged illegal steroid distribution by BALCO – Bay Area Laboratory Co-operative – a nutritional supplement company. After repeated leaks of confidential information from the investigation, federal prosecutors asked five reporters -- Sean Webby and Elliot Almond of the San Jose Mercury News, and Henry Lee, Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle -- to return leaked materials and disclose their confidential sources. Webby and Almond received letters from prosecutors on Aug. 25, 2005 asking them to cooperate. Lee received a similar letter on July 28, and Williams and Fainaru-Wada received letters on July 29. All declined to cooperate and no subpoenas followed.

In early December, sealed testimony from Major League Baseball players Jason Giambi and Barry Bonds was leaked to the media, prompting prosecutors to request a Department of Justice probe into the ongoing leaks. Federal prosecutors filed subpoenas against Williams and Fainaru-Wada in May 2006, and the reporters moved to have those subpoenas quashed.

On Aug. 15, 2006, U.S. District Judge Jeffrey White of the U.S. District Court in San Francisco denied the motions to quash and ordered Williams and Fainaru-Wada to testify, stating that the grand jury's interest in the information outweighed the reporters' First Amendment rights in this case. In September, White sentenced the reporters to prison for civil contempt of court but allowed Williams and Fainaru-Wada to remain out of prison while they appealed their case to the 9th Circuit Court of Appeals.

Just before the case was set to go to oral argument at the appeals court, defense attorney Troy Ellerman admitted in February 2007 that he allowed Fainaru-Wada to take detailed notes of secret transcripts at the same time he was asking for the case against his client to be dismissed because of the leaks. Ellerman, who represented BALCO executives during the investigation, pled guilty to two counts of contempt of court, one count of obstruction of justice and one count of filing a false declaration with a federal court.

Following Ellerman's plea, federal prosecutors withdrew the subpoenas issued to the reporters and to the newspaper. White issued an order in March that officially cleared all findings of contempt against the reporters and the Chronicle.

Fainaru-Wada and Williams have refused to confirm that Ellerman was their source, citing their promise of confidentiality.

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In re Grand Jury Subpoena (Judith Miller)

Status: New York Times reporter Judith Miller was released from jail on Sept. 29, 2005 after spending 85 days behind bars. She later received a waiver from her source, former White House aide I. Lewis "Scooter" Libby, and testified about her conversations with Libby at Libby's criminal obstruction of justice and perjury trial.

On March 6, 2007, Libby was found guilty of obstruction of justice, perjury, and lying to FBI investigators. In June, he was sentenced to 30 months in prison and fined $250,000 for his role in the leak.

Valerie Plame and her husband Joe Wilson have also filed a civil lawsuit against Libby, Richard Armitage, Vice President Dick Cheney and Karl Rove.

Reporters involved:

This leak investigation began after undercover CIA officer Valerie Plame's identity was published by columnist Robert Novak in a July 2003 column. Novak cited two unnamed "senior administration officials" as his sources. Following the Novak column, several other journalists, including Matthew Cooper of Time magazine, reported receiving the same information. The leak was characterized as a politically-motivated attack on Plame's husband, former Ambassador Joseph C. Wilson IV, because Wilson publicly criticized the Bush administration's assertion that Iraq had been attempting to buy uranium from Niger to make nuclear weapons.

Special prosecutor Patrick Fitzgerald was appointed to investigate the leak. Fitzgerald subpoenaed or otherwise demanded testimony from a number of journalists -- including Cooper, Tim Russert, host of NBC's "Meet the Press," Walter Pincus and Glenn Kessler of The Washington Post, and Judith Miller of The New York Times -- before a grand jury concerning alleged conversations the reporters had with confidential sources. Kessler offered limited testimony by deposition on June 22, 2004, to confirm that neither Plame nor Wilson were mentioned in conversations he had with vice presidential aide Lewis "Scooter" Libby. Libby had asked Kessler to confirm to the prosecutor that the two were not mentioned. Libby did not grant Kessler a waiver to discuss the actual content of the conversations, and Kessler did not do so.

In an opinion dated July 20, 2004, Chief Judge Thomas Hogan of U.S. District Court in Washington, D.C., rejected motions by Cooper and Russert to quash their subpoenas on First Amendment grounds. Russert was not held in contempt because he agreed to testify and answer limited questions about conversations with Libby. Cooper initially refused to comply and on Aug. 6 was ordered to jail and to pay a $1,000-per-day fine until he complied with Hogan's order, but was then released on bond pending his emergency appeal to the U.S. Court of Appeals (D.C. Cir).

Miller received a subpoena to testify before the grand jury on Aug. 12. Cooper reached an agreement with prosecutors and testified about conversations with Libby on Aug. 24, but was then subpoenaed again Sept. 14, as was Time. Pincus gave a deposition Sept. 16 with an unnamed source's permission, but refused to name the source who had already identified him or herself. On Oct. 7 and 13, Hogan held Miller and then Cooper and Time in contempt, fined them $1,000 per day and ordered them to jail until they testify. The fines and sentences were stayed pending a consolidated appeal.

The U.S. Court of Appeals (D.C. Cir) heard oral arguments on Dec. 8, 2004 and released its decision on Feb. 15, 2005, holding that no privilege protects journalists from being compelled to reveal their confidential sources when called to testify before grand juries. The judges unanimously agreed that the First Amendment does not provide a privilege from testimony before a grand jury, but split on the issue of whether a "common law" privilege -- one rooted in previous court decisions, not the constitution -- exists. In any case, all agreed that a common law privilege would have been overcome by the prosecutor by apparently showing that the information was critical and only available from the journalists -- although that part of the court's opinion was redacted from the public version. A portion of Judge David S. Tatel's decision, which found a "common law" privilege applied but ruled that it had been overcome in this case, was originally redacted to protect Fitzgerald's ongoing investigation. After an appeal by Dow Jones, the court eventually unsealed the portions of Tatel's decision dealing with Libby, but still did not unseal the entire decision.

On Feb. 23, 2005, two House Democrats asked special prosecutor Patrick Fitzgerald to subpoena reporter James Guckert in the Plame investigation. Guckert reported for conservative Web sites under the pseudonym "Jeff Gannon" and drew criticism for asking President Bush loaded and inaccurate questions at press conferences. Reps. John Conyers (D-Mich.) and Louise Slaughter (D-N.Y.) believe that Guckert may have information useful to the grand jury investigation and may have been given access to a White House memo identifying Plame.

A request for reconsideration by the entire court of appeals was rejected on April 19. Miller, Cooper and Time appealed their cases to the U.S. Supreme Court. Briefs asking the court to accept the case were filed May 9 and 10. Two friend-of-the-court briefs were filed by media organizations on May 18, and a coalition of state attorneys general filed a brief in support of the reporters on May 27. The government's brief was filed on May 31. On June 27, the Supreme Court declined to review the case, and it was sent back to Judge Hogan.

Miller and Cooper indicated at a June 29 hearing that they still did not intend to comply with the subpoenas and Hogan set a final hearing for July 6. On July 1, Time Inc. told the court that it decided to comply with the subpoena, and had turned over Cooper's notes to the grand jury over Cooper's objection.

At the final hearing on July 6, Cooper announced that he had received a voluntary waiver from his source and would testify before the grand jury, and Hogan revoked the contempt citation against him. Miller continued to refuse to testify, and was taken into custody on the civil contempt charge at 3:10 p.m. After spending 85 days in jail, Miller was release late on Sept. 29. She agreed to provide limited testimony to the grand jury regarding Libby without revealing her other sources, and testified on Sept. 30.

Although no one was ever actually charged with leaking Plame's identity, Libby was indicted on Oct. 28, 2005 on charges of obstruction of justice, making false statements to investigators, and perjury.

On Nov. 14, Washington Post reporter Bob Woodward testified before Fitzgerald's grand jury after his source waived their confidentiality agreement. Woodward said he learned of Plame's identity in mid-June 2003, before it was disclosed in Novak's column.

Libby's attorneys subpoenaed most of the reporters involved, demanding that they turn over all notes and documents related to the case. On May 16, 2006, at a pre-trial hearing on a motion to quash those media subpoenas, Libby's lawyers made clear that their strategy at trial would be to attack the credibility of the journalists –- to say that it was the journalists, not Libby, who lied to the special prosecutor. After the pre-trial hearing, U.S. District Judge Reggie B. Walton personally looked over notes, drafts and records turned over from The New York Times, Time, and NBC News in order to search for any additional information related to the case. He then ordered Time to turn over drafts of reporter Matthew Cooper's first-person account of his grand jury testimony, finding that discrepancies between information in the drafts could be relevant in an attempt to impeach his expected trial testimony.

On Sept. 7, 2006, former deputy secretary of state Richard Armitage admitted that he was the unnamed source in Novak's 2003 column that identified Plame as an undercover agent. However, Armitage claimed that he did not realize immediately that Plame was undercover, or even that he was the source cited in Novak's article.

As it turned out, Fitzgerald knew back in 2003 that Armitage was the source of the leak. Apparently, Armitage openly admitted his role in the leak from the state, but Fitzgerald asked him to withhold this information from the public so that perjury allegations could be investigated. Armitage publicly apologized and told The New York Times that he "really felt badly about" the leak. In a Sept. 14 column in the Chicago Sun-Times, Novak rebuffed Armitage's assertion that the leak was merely an offhand comment and asserted that Armitage had deliberately revealed Plame's identity for use in Novak's column.

Libby's criminal trial began in January 2007. Several reporters, including Judith Miller and Matt Cooper, testified about their dealings with Libby and their journalistic methods. On March 6, after 10 days of deliberations, the jury found Libby guilty of one count of obstruction of justice, two counts of perjury, and one count of lying to investigators. He was acquitted of one count of lying to investigators. In June, Libby was sentenced to 30 months in prison and fined $250,000.

Plame and Wilson have filed a civil lawsuit against Libby, Vice President Dick Cheney, Karl Rove and Armitage. There is speculation that reporters may again be called to testify in that case.

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The New York Times Co. v. Gonzales

Status: A federal appeals court overturned the lower court's ruling, holding that the reporters' phone records were not protected by any privilege. 

Reporters involved:

A Chicago grand jury investigated the leak of information about a planned FBI raid on the Global Relief Foundation, an Islamic charity suspected of funding terrorism. Representatives of the charity said they were tipped off the day before the Dec. 14, 2001 raid by reporters calling for comment. U.S. Attorney Patrick J. Fitzgerald, who also acted as the special prosecutor in the Valerie Plame investigation, was denied permission in 2003 by the Department of Justice to subpoena reporters' telephone records. DOJ regulations require that "[a]ll reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media," or for "telephone toll records of any member of the news media." In early Sept. 2004, Fitzgerald subpoenaed the telephone records of two reporters, Judith Miller and Phillip Shenon of The New York Times, from the Times telephone company. It is unknown whether Fitzgerald has obtained the records. The Times filed a lawsuit Sept. 28 to block the subpoena.

On Dec. 1, 2004, the U.S. Court of Appeals in Chicago (7th Cir.) dismissed Global Relief's libel suit against the Times and other news organizations for their reporting on the government's investigation.

On Feb. 24, 2005, a federal district judge in New York City held that the Times had the right to keep its phone records confidential. U.S. District Judge Robert W. Sweet held that the records are protected by a qualified privilege under the First Amendment and under common law, and that prosecutors had failed to overcome the privilege.

"To deny the relief sought by The Times under these circumstances, i.e., without any showing on the part of the government that the sought records are necessary, relevant, material and unavailable from other sources, has the potential to significantly affect the reporting of news based upon information provided by confidential sources," Sweet wrote.

The government appealed the decision to the U.S. Court of Appeals (2nd Cir.), which heard oral arguments on Feb. 13, 2006.

On Aug. 1, 2006, the appeals court overturned the decision of the lower court and ruled that under the First Amendment, the reporters' phone records were not privileged. The decision stated that even if there was an applicable reporter's privilege, it would have been overcome in this case. The court said that the government had a compelling interest in the investigation, had demonstrated the journalists possessed unique and relevant information, and had clearly shown the need for the information.

The Times asked the U.S. Supreme Court to prevent prosecutors from reviewing the records until the high court appeals process could be completed, but the court refused to grant the request in November 2006. Attorneys for the Times have said that they will return to the lower court to appeal the breadth of the subpoena.

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Lee v. Department of Justice (Wen Ho Lee Privacy Act case)

Status: Case concluded; the government and Lee have settled their Privacy Act case, and most of the news media parties facing subpoenas contributed to the settlement.

Reporters involved:

In 2000, Dr. Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, brought a lawsuit against the U.S. Departments of Energy and Justice under the Privacy Act for disclosing private information about him without his consent. In order to prove his claim Lee identified several reporters who had written about him and a now-dropped 1999 investigation on charges of espionage, and sought the identities of the reporters' confidential sources. In an order dated Oct. 9, 2003, Judge Thomas Penfield Jackson of the U.S. District Court in Washington, D.C. ordered five reporters -- James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, Pierre Thomas, formerly of CNN and now with ABC News, and H. Josef Hebert of the Associated Press -- to reveal their confidential sources. The Washington Post's Walter Pincus was ordered to do the same in early 2004. In Dec. 2003 and Jan. 2004, the journalists answered questions posed by Lee's attorneys but refused to reveal their confidential sources. Judge Jackson found the five reporters -- the case against Pincus was moving on a slower track -- in contempt of court on Aug. 18, 2004 and ordered each to pay a fine of $500-per-day. Jackson stayed the fine pending the reporters' appeal to the U.S. Court of Appeals (D.C. Cir.).

On June 28 the Court of Appeals upheld the contempt citations against Risen, Drogin, Thomas and Hebert, but the court threw out the contempt citation against Gerth because he had testified under oath that he had no confidential sources regarding Lee and did not know the identity of confidential sources who provided information for articles about Lee he co-wrote with Risen. On Nov. 3, the full Court of Appeals declined to review the case with a 4-4 split vote. Following that denial, the trial court held Pincus in contempt on Nov. 16.

In January 2006, Drogin, Hebert and Risen petitioned the U.S. Supreme Court to review the case, and Thomas filed a similar petition in March.

Before the high court could decide whether to take the case, Lee settled the case with the government on June 2, and the news media parties involved contributed to the settlement. ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post agreed to pay Lee $750,000. In a joint statement from the news organizations, the media outlets said they agreed to the payout "to protect our confidential sources, to protect our journalists from further sanction and possible imprisonment, and to protect out news organizations from potential exposure. We were reluctant to contribute anything to this settlement, but we sought relief in the courts and found none." The settlement ended the contempt citations against the journalists.

On June 5, the high court announced that it would not hear the reporters' appeal. The decision was made at the court's conference on June 1.

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In re Special Proceedings (Buddy Cianci investigation)

Status: Case concluded; contempt sentence served.

Reporters involved:

This case began after WJAR-TV reporter Jim Taricani in Providence received a videotape from a confidential source. The videotape, aired by WJAR in Feb. 2001, shows a former Providence City Hall official taking a bribe from an undercover FBI informant in a sting dubbed "Operation Plunder Dome." Former Providence Mayor Vincent "Buddy" Cianci Jr. was later convicted on corruption charges and is currently serving a five-year, three-month sentence in federal prison.

The videotape was leaked to Taricani in violation of a protective order issued by Senior U.S. Judge Ronald R. Lagueux, which barred the attorneys, investigators and defendants involved in the FBI investigation from releasing any of the videotapes. Special Prosecutor Mark DeSisto was appointed to investigate the source of the leak. Chief U.S. District Court Judge Ernest C. Torres ordered WJAR-TV reporter Jim Taricani to reveal the source of the videotape by March 16, 2004 or face fines of $1,000-per-day.

The U.S. Court of Appeals in Boston (1st Cir.) upheld the contempt order on June 21, 2004. The fine was imposed starting Aug. 12, and totaled more than $85,000 when on Nov. 4 Torres stayed the fine and gave Taricani two weeks to testify or face criminal contempt charges and up to six months in prison. Taricani refused and was convicted Nov. 18.

Following the conviction, DeSisto revealed that he had deduced the identity of the source: Joseph A. Bevilaqua, Jr., an attorney for another of the "Plunder Dome" defendants. Despite this revelation, Torres sentenced Taricani to six months of home confinement on Dec. 9. Taricani decided Dec. 22 not to appeal the sentence. He was released on April 9, 2005, two months early. Bevilaqua has been charged with perjury and criminal contempt of court.

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Lynne Stewart trial

Status: Case concluded; no subpoenas pending.

Reporters involved:

New York defense attorney Lynne Stewart was tried for aiding terrorism by publicizing the statement of a client, Sheik Omar Abdel Rahman, against court orders in 2000. Federal prosecutors subpoenaed four reporters -- Esmat Salaheddin of Reuters, Patricia Hurtado of Newsday, Joseph Fried of The New York Times, and George Packer, a freelancer for The New York Times -- but only one testified before the prosecution rested its case. Salaheddin testified Sept. 13, 2004 about the accuracy of a published story. Judge John Koetel of the U.S. District Court in New York permitted the limited testimony as a "last resort." Prosecutors dropped Hurtado's subpoena after she successfully argued that it would interfere with her ability to cover the trial as a courts reporter.

Stewart was convicted on Feb. 10, 2005.

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