Amicus Curiae Brief — Miller v. United States

() a AY 18 2005

Nos. ao & 04-1508 = oLE

3n The

Supreme Court of the Gnited States

JUDITH MILLER, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

MATTHEW COOPER and TIME INC., Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Petitions for Writs of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL FREEDOM

IN SUPPORT OF PETITIONERS

REID ALAN COx*

RENEE L. GIACHINO

CENTER FOR INDIVIDUAL

FREEDOM

113 S. Columbus Street,

Suite 310

Alexandria, VA 22314

(703) 535-5836

ac iC RAITT SARACEN SLT AE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

* Counsel of Record

.

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ....................ccccceeeseeeee

IN Gini alloiiin diiaicabinsesnssccasnigd iia cotinebed tact

I. THIS COURT SHOULD CLARIFY WHETHER

AND WHEN THE FIRST AMENDMENT

PROTECTS CONFIDENTIAL NEWS SOURCES

FROM COMPELLED DISCLOSURE

ME ARAL, FCO is nsnsissstiseieekicdncsisacsaniecs

A. This Court Should Resolve the Conflicts

and Confusion Over the Meaning

and Application of Branzburg ................000..

B. The Foundations Underlying Branzburg

Have Shifted and a Consensus Among

the States Now Favors Protection

for Confidential News Sources ....................

II. REVIEW IS WARRANTED TO RECONSIDER

THE SUBMISSION AND CONSIDERATION

OF EX PARTE EVIDENCE AGAINST

ERE ASE ere een ON

IIIT phstitrcla divs sakes lites ta baedcxdastiden cd iacnsteaanens

Pages

TABLE OF AUTHORITIES

CASES Pages

Atkins v. Virginia,

536 U.S. SOG CAIID: xcsssossaniarenvapsssinetesemneteticenetanns 13

Baker v. F & F Inv.,

470 F.2d 778 (2d Cir. 1972),

cert. denied, 411 U.S. 966 (1973). ...........ceeeeeeeeeeeees 6

Branzburg v. Hayes,

408 U.S. GOS CHER: sticcnsseaistetiseeeenseenenentes passim

Carey v. Hume,

492 F.26 G31 GEA. Ca I sicicai eacintiiinorasines 9

Cervantes v. Time Inc.,

464 F.2d 986 (8th Cir. 1972),

cert. denied, 409 U.S. 1125 (1973). ..........cc cece eeeeee 5

Elrod v. Burns,

427 US. FAT CGPI saiccikscistenidesnsdlinaesinsinas 1]

Farr v. Pitchess,

522 F.2d 464 (9th Cir. 1975),

cert. denied, 427 U.S. 912 (1976). ...........ccccceeeeeeeees 7

Florida Star v. B.J.F.,

491 U.S. 324-(IGRBE cccctomenatsseeiabanentn 4,13

Gonzales v. Nat’l Broad. Co.,

194 F.36 ZO GRC. FI sssscicinicnsscousataenantadeass 6

Gratz v. Bollinger,

539 U.S. 266 (ARI sis keane 5

TABLE OF AUTHORITIES-Continued

Gregg v. Georgia,

II CEP NUPITIIG ° ccsicdccsdnccdncnbceunsasanceccasaucaoseoacens 10

Grutter v. Bollinger,

| __, RS a e Oe a CE 5

Hamdi v. Rumsfeld,

SHS A EE TEIIIPUE, ncxcnsovisosoancsacoonserencenssounctnasse 15

In re Grand Jury Proceedings

(Scarce v. United States),

5 F.3d 397 (9th Cir. 1993),

cert. denied, 510 U.S. 1041 (1994). ooo. 7

In re Grand Jury Proceedings

(Storer Communications, Inc. v. Giovan),

ee et IE Ge BOE, ccccececoseccenscnncceccsacensses 8

In re Grand Jury Subpoena (Miller),

397 F.3d 964 (D.C. Cir. Feb. 15, 2005). ......... passim

In re Grand Jury Subpoena (Williams),

766 F. Supp. 358 (W.D. Pa. 1991),

aff'd by an equally divided court,

963 F.2d 567 (3d Cir. 1992) (en banc). .0.........00..- 6,7

In re Guantanamo Detainee Cases,

355 F. Supp. 2d 443 (D.D.C. Jan. 31, 2005). ........... 15

In re Shain,

BR a IE, BORED, cacevenecccoseccenssncenseccceses 7

In re Special Proceedings,

ee IP 0 OWE GAs BD ccinccccesssesesasscnccccesescavnss 6

1V

TABLE OF AUTHORITIES-Continued

Landmark Communications, Inc. v. Virginia,

PD Eos CO RIMES hnnectncsneincaasncincndntcis ancient 4, 13

LaRouche v. Nat’l Broad. Co.,

780 F.2d 1134 (4th Cir.),

cert. denied, 479 U.S. 818 (1986). .......... cece 7

Marks v. United States,

Ct TI ndicacesincsaccnicesnscddasancamuieransuueash 10

McKevitt v. Pallasch,

539 F380 S30 (Pilea Cie. DOGS). ..n0ecccescessscsccrcesss 8, 9-10

McKoy v. North Carolina,

Ue Cah SE CIE sidinesninieintinnamennipeaninanncionen 10

Miller v. Transamerican Press, Inc.,

621 F.2d 721 (Sth Cir. 1980),

cert. denied, 450 U.S. 1041 (1981). «0.0.0.0... 7

New York Times v. Gonzales,

No. 04 Civ. 7677 (RWS),

2005 U.S. Dist. LEXIS 2642

na Oe SI An IY. Kies einhsickvitkcdnniecatnedaeacnnsenen’ 12

Regents of Univ. of Cal. v. Bakke,

Sy A TE II, © hcsiivaiilsiashinneicdiciatinbicabainitaheis 5,8

Richmond Newspapers, Inc. v. Virginia,

Pe Rs FP IS | chk csisaterotdnetsinsaniccasapsinAaimiasorbabad 4

Riley v. City of Chester,

OE Fe RE BO TFE iRise 6

Vv

TABLE OF AUTHORITIES-Continued

Roper v. Simmons,

125 S. Ct. 1183 (March 1, 2005). ooo... cecceccecceceeceee. 13

Silkwood v. Kerr-McGee Corp.,

OS F260 433 (IG CW. IDFA, i. ccicsiiccecccciecccce 5

Shoen v. Shoen,

DF .SG EBD CO Ce. GG, oc ccicsccestcccdanestecccesas, 7

Turner Broad. Sys. v. FCC,

ES Sa Wm COED: kisi ssninctnsdnioenic ee 13

Smith v. Daily Mail Publ’g Co.,

OED TER. FT CI: npisintbcicceacei 4

United States v. Burke,

700 F.2d 70 (2d Cir.),

cert. denied, 464 U.S. 813 (1983). oo.ccecceccccccccceceees. 6

United States v. Caporale,

806 F.2d 1487 (11th Cir. 1986),

cert. denied, 482 U.S. 917 (1987),

GOS TB. TORE UOT, bacrsissvsccssccsriataccneatnace, 6

United States v. Cuthbertson,

630 F.2d 139 (3d Cir. 1980),

cert. denied, 449 U.S. 1126 (1981). oovceccccccccccccceceee. 6

United States v. Lopez,

PES UD. SOD CIGD. visiiishicdiccteicc 4

United States v. Moussaoui,

382 F.3d 453 (4th Cir. 2004),

cert. denied, 125 S. Ct. 1670 (March 21, yi +) 15

vi

TABLE OF AUTHORITIES-Continued

United States v. Smith,

ELPA Dee Le Re core eam 7

Zerilli v. Smith,

656 F.28 FOS GK. CH TED anconthssaneen 7,9

Zurcher v. Stanford Daily,

456 US. S57 (ISO ct 10-11

OTHER

Susan Schmidt, The When and How of Leak

Being Probed: Timing of Disclosure of CIA

Employee's Name a Factor in Deciding if Law

Was Broken, WASH. POST, Nov. 26, 2004. ................. 16

Potter Stewart, Or of the Press,

20 FEASTING L..5. GE, GES CEG TAR cocccncccsscccecctscsinacves ll

In The

Supreme Court of the Anited States

Nos. 04-1507 & 04-1508

JUDITH MILLER, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

MATTHEW COOPER and TIME INC., Petitioners

>

Vv.

UNITED STATES OF AMERICA, Respondent.

On Petitions for Writs of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE

CENTER FOR INDIVIDUAL FREEDOM

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE'

The Center for Individual Freedom (the “Center”) is a

non-partisan, non-profit organization with the mission to

' This brief is filed with the written consent of both parties. No counsel

for a party authored this brief in whole or in part, nor did any person or

entity, other than Amicus or its counsel, make a monetary contribution to

the preparation or submission of this brief.

2

protect and defend individual freedoms and individual rights

guaranteed by the Constitution of the United States, including

free speech right., free press rights, privacy rights, and the

freedom of association. Of particular importance to the

Center in these cases is the need to vigilantly safeguard the

First Amendment rights of all newsgatherers, publishers, and

the public, who depend on the protection of confidential

sources in gathering, publishing, and receiving news,

information, and commentary.

The Center’s interest in these cases stems not only from

its principled commitment to protect and defend the

constitutional rights of all newsgatherers, publishers, and the

public, but also from the Center’s practical experience as a

newsgatherer, information source, and publisher, itself. As a

vocal proponent of individual freedom, open government,

and public accountability, the Center engages in direct-to-

the-public advocacy by disseminating news, information, and

commentary through a variety of media, including its own

Internet website, <http://www.cfif.org>, which is updated

weekly and visited by millions of readers each year. The

Center’s advocacy is dependent upon an ability to gather

information from all types of sources, including those who

require their identities remain confidential, so that the Center

is able to enlarge public knowledge and encourage public

discourse on matters of importance.

SUMMARY OF ARGUMENT

It is long past time for this Court — the final arbiter of

the Constitution of the United States — to reconsider and

clarify whether and when the First Amendment protects

newsgatherers from compelled disclosure of their

confidential news sources pursuant to legal proceedings.

These constitutional questions of the utmost importance have

confounded and divided the federal circuit courts, federal

district courts, and state courts of record for more than three

3

decades. Indeed, given the multiplicity of conflicting rulings,

newsgatherers now find they enjoy dramatically different

First Amendment protections for their confidential news

sources from one jurisdiction to the next, from one type of

case to another, and even from federal to state courts. This

arbitrary jurisprudential patchwork not only threatens the

constitutional rights of newsgatherers, their confidential

sources, and the public by chilling important protected

speech, it also undermines the First Amendment, itself, which

is supposed to be the “supreme Law of the Land” in each

legal proceeding in every court across the country.

Moreover, in the generations since this Court considered

these constitutional questions, there has been a sea change in

the protection of confidential news sources and truthful

information that indicates a national consensus among the

States in favor of a reporter’s privilege that shields

newsgatherers like the Petitioners in these cases.

Additionally, these cases warrant review because the

court below upheld the contempt citations against and the

imprisonment of the journalists based, at least in part, on

secret evidence submitted by the prosecutor and considered

by the court ex parte. That ruling directly conflicts with the

overwhelming weight of authority from this Court and others.

Indeed, even in cases that involve far more compelling and

certain concerns, this Court has consistently held that, at a

minimum, due process requires the opportunity to review and

rebut the evidence presented before an accused can be

“deprived of life, liberty, or property.”

4

ARGUMENT

I. THis COURT SHOULD CLARIFY WHETHER AND WHEN

THE FIRST AMENDMENT PROTECTS CONFIDENTIAL

NEWS SOURCES FROM COMPELLED DISCLOSURE IN

LEGAL PROCEEDINGS

It is always important to “start with first principles.”

United States v. Lopez, 514 U.S. 549, 552 (1995). . With

respect to the freedoms of speech and of the press guaranteed

by the First Amendment, this means that governmental

actions that interfere with the communication of truthful

information and even controversial ideas raise constitutional

concerns and are inherently suspect. See generally Florida

Star v. BJF. 491 US. 524 (1989); Landmark

Communications, Inc. v. Virginia, 435 U.S. 829 (1978). The

U.S. Supreme Court has noted that even when the

government’s authority is at its zenith, such as when the

government is protecting and vindicating civil society’s

standards through a criminal prosecution, adverse impacts on

the First Amendment rights of others cannot Le disregarded

or ignored. See generally Richmond Newspapers, Inc. v.

Virginia, 448 U.S. 555 (1980). Instead, those constitutional

concerns must be taken into account when courts review the

challenged state action by properly weighing the First

Amendment interests at stake as an important counterbalance

- to the interests asserted against openness and the public’s

right to receive information and ideas. See generally Smith v.

Daily Mail Publ’g Co., 443 U.S. 97 (1979); Landmark

Communications, Inc., 435 U.S. 829.

These “first principles” lead to the conclusion that

constitutional protections for free speech and free press, in

one way or another, limit the authority of special counsel,

prosecutors, criminal defendants, and civil litigants to compel

newsgatherers and publishers to disclose confidential sources

used in gathering and communicating news, information, and

commentary to the public. The court below, however,

aaa iN.

5

rejected this conclusion because the majority believed that

this Court, in Branzburg v. Hayes, 408 U.S. 665 (1972),

“considered and rejected the same claim of First Amendment

privilege on facts materially indistinguishable from those at

bar.” In re Grand Jury Subpoena (Miller), 397 F.3d 964, 968

(D.C. Cir. Feb. 15, 2005). Because that decision is in direct

conflict with the rulings of other federal circuit courts,

federal district courts, and state courts of record, not to

mention a clear national consensus among the states in favor

of a reporter’s privilege protecting confidential news sources,

this Court should grant review in these cases.

A. This Court Should Resolve the Conflicts and

Confusion Over the Meaning and Application of

Branzburg

It is definitely time for this Court to reconsider and

clarify the meaning and application of Branzburg v. Hayes,

408 U.S. 665 (1972). As with Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), which this Court

reconsidered and clarified two terms ago in Grutter v.

Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539

U.S. 244 (2003), the Branzburg decision has created

irreconcilable conflicts and undeniable confusion in the

courts below. Today, there are no fewer than four different

and inconsistent positions taken by the federal circuit courts

that have interpreted Branzburg and decided whether and

when the First Amendment provides a privilege protecting

confidential news sources.’

. Indeed, there could be more inconsistent positions on the interpretation

of Branzburg yet to come since two circuits — the Eighth and Tenth —

have yet to address whether the First Amendment offers any protection

for confidential news sources in criminal proceedings. See Cervantes v.

Time Inc., 464 F.2d 986, 992 n.9 (8th Cir. 1972), cert. denied, 409 U.S.

1125 (1973); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th

Cir. 1977).

6

First, there are four circuits — the First, Second, Third,

and Eleventh — that have held Branzburg recognized a First

Amendment privilege protecting newsgatherers from the

compelled disclosure of their confidential sources in all types

of cases, both civil and criminal, including grand jury

proceedings. See, e.g., In re Special Proceedings, 373 F.3d

37, 45 (1st Cir. 2004); United States v. Burke, 700 F.2d 70,

77 (2d Cir.), cert. denied, 464 U.S. 813 (1983) (citing Baker

v. F & F Inv., 470 F.2d 778, 784 (2d Cir. 1972)); Gonzales v.

Nat'l Broad. Co., 194 F.3d 29, 36 (2d Cir. 1999);° Riley v.

City of Chester, 612 F.2d 708, 714-15 (3d Cir. 1979); United

States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980), cert.

denied, 449 U.S. 1126 (1981); In re Grand Jury Subpoena

(Williams), 766 F. Supp. 358, 371 (W.D. Pa. 1991), aff'd by

an equally divided court, 963 F.2d 567 (3d Cir. 1992) (en

banc); United States v. Caporale, 806 F.2d 1487, 1504 (11th

Cir. 1986), cert. denied, 482 U.S. 917 (1987), 483 U.S. 1021

(1987).

These are the circuits that most directly conflict with the

decision of the court below. Compare In re Grand Jury

Subpoena (Miller), 397 F.3d at 970 (“Unquestionably, the

Supreme Court decided in Branzburg that there is no First

Amendment privilege protecting journalists from appearing

> In Gonzales v. National Broadcasting Co., the Second Circuit noted

that “[p]revious decisions of our court have expressed differing views on

whether the journalists’ privilege is constitutionally required, or rooted in

federal common law,” explaining that, “[uJjntil Congress legislates to

modify the privilege or do away with it, ... we need not decide whether

the privilege is founded in the Constitution.” 194 F.3d 29, 36 n.6 (2d Cir.

1999).

* This is not to mention the state courts of last resort that, likewise, have

concluded that Branzburg and the First Amendment stand for the

proposition that newsgatherers enjoy a privilege protecting their

confidential sources from compelled disclosure pursuant to grand jury

proceedings. See Cooper & Time Inc. v. United States, No. 04-1508, Pet.

for Writ of Cert., at 21-22 & n.6 (citing cases) (filed May 10, 2005).

ne

7

before a grand jury or from testifying before a grand jury or

otherwise providing evidence to a grand jury regardless of

any confidence promised by the reporter to any source.’’),

with In re Grand Jury Subpoena of Williams, 766 F. Supp. at

371 (“There is a qualified news gatherer’s privilege against

compelled disclosure of his or her news sources in a Grand

Jury proceeding.”), aff'd by an equally divided court, 963

F.2d 567 (3d Cir. 1992) (en banc).

Second, there is the interesting position of the Ninth

Circuit, which has concluded that the First Amendment

provides newgatherers with a privilege for the protection of

their confidential sources in civil and criminal cases, but not

grand jury proceedings. See, e.g., Shoen v. Shoen, 5 F.3d

1289, 1296 (9th Cir. 1993) (recognizing the reporter’s

privilege in a civil case); Farr v. Pitchess, 522 F.2d 464, 467-

69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976)

(applying the reporter’s privilege in a criminal case); Jn re

Grand Jury Proceedings (Scarce v. United States), 5 F.3d

397, 402 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994)

(rejecting the reporter’s privilege in the context of a grand

jury).

Third, three other circuits — the Fourth, Fifth, and the

court below, the D.C. Circuit — have recognized a First

Amendment-based reporter’s privilege in civil cases while, at

the same time, concluding that Branzburg eliminated the

possibility of such protection in criminal cases. Compare In ~

re Shain, 978 F.2d 850, 852-53 (4th Cir. 1992); United States

v. Smith, 135 F.3d 963, 969 (Sth Cir. 1998); and Jn re Grand

Jury Subpoena (Miller), 397 F.3d 964, 970 (D.C. Cir. Feb.

15, 2005) (all rejecting a reporter’s privilege in criminal

proceedings); with LaRouche v. Nat’l Broad. Co., 780 F.2d

1134, 1139 (4th Cir.), cert. denied, 479 U.S. 818 (1986);

Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (Sth

Cir. 1980), cert. denied, 450 U.S. 1041 (1981); and Zerilli v.

Smith, 656 F.2d 705, 711 (D.C. Cir. 1981) (all recognizing a

reporter’s privilege in civil cases).

8

Fourth and finally, there are the Sixth and Seventh

Circuits, which have ruled that, in Branzburg, this Court

rejected altogether a First-Amendment based privilege for

newsgatherers and the protection of their confidential sources

regardless of the type of legal proceeding in which the

disclosure is sought. See, e.g., In re Grand Jury Proceedings

(Storer Communications, Inc. v. Giovan), 810 F.2d 580, 584

(6th Cir. 1987); McKevitt v. Pallasch, 339 F.3d 530, 533 (7th

Cir. 2003). |

It is evident why Branzburg and a First Amendment

privilege protecting confidential news sources have so

confused and divided the courts below. As was the case in

Regents of the University of California v. Bakke, 438 U.S.

265 (1978), the meaning and application of Branzburg

depends upon the necessary fifth vote of Justice Powell.

It is true that, unlike in Bakke, Justice Powell joined the

majority opinion in Branzburg. But not only is that five-vote

majority opinion far from clear in foreclosing future

assertions of a First Amendment-based newsgathering

privilege, see Branzburg, 408 U.S. at 707 (“news gathering is

not without its First Amendment protections”), Justice

Powell also issued a concurring opinion specifically stating

that Branzburg “does not hold that newsmen, subpoenaed to

testify before a grand jury, are without constitutional rights

with respect to the gathering of news or in safeguarding their

sources,” id. at 709 (Powell, J., concurring), and that “the

courts will be available to newsmen under the circumstances

where legitimate First Amendment interests require

protection,” id. at 710 (Powell, J., concurring).

Indeed, Justice Powell noted in his concurring opinion

that if a newsgatherer has some “reason to believe that his

testimony implicates confidential source relationships

without a legitimate need of law enforcement, he will have

access to the court on a motion to quash and an appropriate

protective order may be entered.” Jd. Justice Powell then

9

went on to explain that, in his opinion, “[{t}he asserted claim —

to privilege should be judged on its facts by the striking of a

proper balance between freedom of the press and the

obligation of all citizens to give relevant testimony with

respect to criminal conduct,” and that such a “balance of

these vital constitutional and societal interests on a case-by-

case basis accords with the tried and traditional way of

adjudicating such questions.” /d. In other words, Justice

Powell explicitly held that the First Amendment applied and

offered at least some protection when newsgatherers face the

compelled disclosure of their confidential sources in

connection with legal proceedings.

The necessity of Justice Powell’s vote and his concurring

opinion’s effect on the holding in Branzburg are the obvious

reasons why the courts below are so hopelessly conflicted

and confused. No fewer than eight of the federal circuits —

including the court below in Zerilli, 656 F.2d at 711, and

Carey v. Hume, 492 F.2d 631, 636 (D.C. Cir. 1974) — have

held, at one time or the other, that Justice Powell’s

concurrence controls or narrows the holding in Branzburg.

See also Miller v. United States, No. 04-1507, Pet. for Writ

of Cert., at 17-18 (collecting cases). Strikingly, even Judge

Posner, who rejected the recognition of a reporter’s privilege

under the First Amendment for the Seventh Circuit, noted

that he was unsure whether his reading of Branzburg was

correct:

Although the Supreme Court in Branzburg ...

declined to recognize such a privilege, Justice Powell,

whose vote was essential to the 5-4 decision rejecting

the claim of privilege, stated in a concurring opinion

that such a claim should be decided on a case-by-case

basis by balancing the freedom of the press against

the obligation to assist in criminal proceedings. Since

the dissenting Justices would have gone further than

Justice Powell in recognition of the reporter’s

privilege, and preferred his position to that of the

10

majority opinion (for they said that his “enigmatic

concurring opinion gives some hope of a more

flexible view in the future’), maybe his opinion

should be taken to state the view of the majority of

the Justices — though this is uncertain, because

Justice Powell purported to join Justice White’s

“majority” opinion.

McKevitt, 339 F.3d at 531-32 (citations omitted).

Moreover, the confusion as to meaning and application of

Branzburg has only been exacerbated by the fact that this

Court has explained in the past that its holdings are

controlled by and should be understood to be those that can

or did receive the assent of at least five justices. See McKoy

v. North Carolina, 494 U.S. 433, 462 n.3 (1990) (Scalia, J.,

joined by Rehnquist, C,J., and O’Connor, J., dissenting) (a

concurrence “can assuredly narrow what the majority opinion

holds, by explaining the more limited interpretation adopted

by a necessary member of that majority); cf Marks v. United

States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia,

428 U.S. 153, 169 n. 15 (1976)) (“When a fragmented Court

decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ‘the holding of the Court

may be viewed as that position taken by those Members who

concurred in the judgments on the narrowest grounds”).

There can be little doubt that Justice Powell intended to

control or, at the very least, narrow the holding in Branzburg.

Explaining his necessary fifth vote several years later, Justice

Powell wrote:

The concurring opinion in Branzburg v. Hayes ...

noted ... that in considering a motion to quash a

subpoena directed to a newsman, the court should

balance the competing values of a free press and the

societal interest in detecting and prosecuting crime.

... Rather than advocating the creation of a special

procedural exception for the press, it approved

Lee

11

recognition of First Amendment concerns within the

applicable procedure.

Zurcher v. Stanford Daily, 436 U.S. 547, 570 n.3 (1978)

(Powell, J., concurring).

Thus, even in spite of Branzburg’s result, perhaps the

most plausible reading of that decision is that this Court held

the First Amendment provides newsgatherers and publishers

with some degree of constitutional protection against the

compelled disclosure of their confidential source, even when

subpoenaed by a grand jury. See Branzburg, 408 U.S. at

709-10 (Powell, J. concurring); id. at 712-13, 721-22

(Douglas, J., dissenting); id. at 736-38, 743 (Stewart,

Brennan, Marshall, JJ., dissenting). Or perhaps, as Justice

Stewart commented in a law journal article, Branzburg was a

stalemate in which this “Court rejected the [reporters’] claims

... by a vote of four and a half to four and a half.” Potter

Stewart, Or of the Press, 26 HASTINGS L.J. 631, 635 (1975).

In either case, it goes almost without saying that the “loss

of First Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury,” Elrod v.

Burns, 427 U.S. 347, 373 (1976), and the current arbitrary

patchwork of varied First Amendment protections for

confidential news sources surely does not adequately secure

the freedoms of speech and of the press. Indeed, both

Petitioner Judith Miller and Respondent Special Counsel

Patrick Fitzgerald know well that newsgatherers enjoy widely

differing constitutional protections for their confidential

sources depending solely upon the jurisdiction in which their

discovery is sought. Compare In re Grand Jury Subpoena

(Miller), 397 F.3d at 970 (upholding a contempt citation

against Ms. Miller because “the Supreme Court decided in

Branzburg that there is no First Amendment privilege

protecting journalists from appearing before a grand jury or

from testifying before a grand jury or otherwise providing

evidence to a grand jury regardless of any confidence

12

promised by the reporter to any source”); with New York

Times v. Gonzales, No. 04 Civ. 7677 (RWS), 2005 U.S. Dist.

LEXIS 2642 (S.D.N.Y. Feb. 24, 2005) (recognizing a

reporter’s privilege under the First Amendment and common

law that protects Ms. Miller’s confidential sources and

telephone records). Such arbitrary First Amendment

protection is not constitutionally acceptable, and this Court

should grant review to resolve these conflicts.

B. The Foundations Underlying Branzburg Have

Shifted and a Consensus Among the States Now

Favors Protection for Confidential News Sources

Although the federal circuit courts are much conflicted as

to whether and when newsgatherers enjoy. a constitutional.

privilege protecting their confidential sources from

compelled disclosure in legal proceedings, the states are

unanimous in embracing some sort of reporter’s privilege,

with the sole exception of Wyoming, which has not

considered the issue. See Miller v. United States, No. 04-

1507, Pet. for Writ of Cert., at 23-24, n.21 & 22 (collecting

state statutes and cases establishing a reporter’s privilege). In

fact, the concurring opinion of Judge Tatel below recognized

“that forty-nine states plus the District of Columbia offer at

least qualified protection to reporters’ sources.” Jn re Grand

Jury Subpoena (Miller), 397 F.3d at 993 (Tatel, J.,

concurring).

As Judge Tatel observed, “Denial of the privilege, then,

would ... buck the clear policy of virtually all the states,”

and, “[iJnsofar as Branzburg relied on the ‘great weight of

authority’ to discern the First Amendment’s meaning, the

shift in favor of the privilege since that time — from

seventeen states with statutory privileges then to thirty-one

plus D.C. today, with another eighteen providing common

law protection — could provide a basis for rethinking

Branzburg.” Id. at 993, 994 (Tatel, J., concurring).

13

Indeed, earlier this term, this Court did just that in an

Eighth Amendment case, reconsidering and reinterpreting the

constitutional prohibition against “cruel and unusual

punishment” with far less consensus among the states. See

Roper v. Simmons, 125 S. Ct. 1183, 1192 (March 1, 2005)

(reinterpreting the Eighth Amendment to bar imposing

capital punishment on juveniles after finding that 30 states

prohibit the juvenile death penalty); see also Atkins v.

Virginia 536 U.S. 304, 306-07 (2002) (also reinterpreting the

Eighth Amendment to bar the execution of the mentally

retarded after finding that 30 states had rejected the practice).

Even if it were true in 1972 “that the great weight of

authority [wa]s that newsmen are not exempt from the

normal duty of appearing before a grand jury and answering

questions relevant to a criminal investigation,” Branzburg,

408 U.S. at 685, the same is no longer true in 2005. It is

quite the opposite. In more than three decades since this

Court decided Branzburg, it has become the all but

unanimous position of the states that newsgatherers should

enjoy protection for their confidential sources against

compelled disclosure in legal proceedings. This national

consensus among the states developed at the same time as

this Court granted greater constitutional protection to speech

of all kinds, requiring that even generally-applicable laws

survive heightened scrutiny when they burden asserted First

Amendment interests. See, e.g., Turner Broad. Sys. v. FCC,

512 U.S. 622, 642 (1994). Moreover, over the same time

period, this Court has been extraordinarily careful to ensure

that government does not interfere with the gathering,

communication, and dissemination of truthful speech and

information, such as the very reporting and publishing

targeted by the subpoenas in these cases. See generally

Florida Siar v. B.J.F., 491 U.S. 524 (1989); Landmark

Communications, Inc. v. Virginia, 435 U.S. 829 (1978).

This national consensus among the states along with the

steady and consistent development and extension of robust

14

First Amendment protections leads to a single conclusion —

that newsgatherers are entitled to at least some constitutional

protection for their confidential sources. This Court should

grant review in these cases to reconsider whether the First

Amendment provides that protection consistent with the

consensus that has emerged from the states and the advances

in this Court’s First Amendment jurisprudence.

Il. REVIEW IS WARRANTED TO. RECONSIDER THE

SUBMISSION AND CONSIDERATION OF EX PARTE

EVIDENCE AGAINST THE REPORTERS

Perhaps the most surprising and objectionable part of the

decision below was the court’s willingness to uphold the

contempt citations against and possible imprisonment of the

Petitioners based upon evidence neither they nor their

counsel were allowed to examine or afforded the opportunity

to rebut. In fact, all three judges below ruled “that if [the

reporter’s] privilege applies here, it has been overcome,” and

then explained that “the reasons [were] set forth in the

separate opinion of Judge Tatel.” /n re Grand Jury Subpoena

(Miller), 397 F.3d at 973. But while “the reasons” may have,

in fact, been “set forth” in Judge Tatel’s concurring opinion,

id., any reader — including Petitioners Judith Miller,

Matthew Cooper, Time Inc., and their counsel — other than

the judges and the Special Counsel would never know

because those findings were redacted — all eight pages of

them. See id. at 1002 (Tatel, J., concurring). Thus,

Petitioners not only had to take the word of the court below

that the judges did “ensure that the special counsel ha[d] met

his burden demonstrating that information is both critical and

unobtainable from any other source,” but the Petitioners also

never had the opportunity to review or rebut the evidence

submitted and considered against them. /d. Such an ex parte

procedure not only offends constitutional common sense, but

SS ee

15

also fails to meet the most minimal requirements of due |

process regardless of the countervailing interests at stake.

Notably, a plurality of this Court: ruled just last term in

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), that even alleged

enemy combatants are entitled to greater due process with

regard to knowledge of and challenge to the adverse evidence

than Petitioners received in both the court below and the

district court. Specifically, this Court concluded in Hamdi,

that an enemy combatant was due, at a minimum, “a fair

opportunity to rebut the Government’s factual assertions

before a neutral decisionmaker,” and that “[a]ny process in

which the Executive’s factual assertions go wholly

unchallenged or are simply presumed correct without any

opportunity for the alleged combatant to demonstrate

otherwise falls constitutionally short.” Jd. at 2648. Indeed,

other courts have held that an accused’s opportunity to

review, challenge, and rebut evidence introduced to

“deprive” him of “life, liberty, or property” is fundamental to

any minimal due process standard, even when that evidence

is classified based on national security concerns. See, e.g.,

United States v. Moussaoui, 382 F.3d 453, 475 (4th Cir.

2004), cert. denied, 125 S. Ct. 1670 (March 21, 2005); Jn re

Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 468

(D.D.C. Jan. 31, 2005). As a result, in cases like the criminal

prosecution of Zacarias Moussaoui, the government has been

required to offer either the defendant or his counsel who have ~

proper security clearance the opportunity to examine the

evidence submitted against him.

The interests on the side of secrecy in these cases do not

come close to the compelling and certain risks raised by the

evidence in the enemy combatant and terrorism-related cases

that this Court and others have held to be subject to an

accused’s review, challenge, and rebuttal. Moreover, reports

of the Special Counsel’s investigation have gone so far as to

suggest that it is possible — if not likely — that the

disclosure of Valerie Plame’s classified identity as a CIA

a

16

operative did not violate any criminal laws, meaning the

importance of the investigation is comparatively low. See,

e.g., Susan Schmidt, The When and How of Leak Being

Probed: Timing of Disclosure of CIA Employee’s Name a

Factor in Deciding if Law Was Broken, WASH. POST, Nov.

26, 2004, at A6 (noting “[t]o constitute a violation of the

Intelligence Identities Protection Act, a disclosure by a

government official must have been deliberate, the person

doing it must have known that the CIA officer was a covert

agent, and he or she must have known that ‘the United States

is taking affirmative measures to conceal such covert agent’s

intelligence relationship to the United States,” and

explaining that “[{i]f White House aides directed reporters to

information that had already been published by [columnist

Robert] Novak, they may not have disclosed classified

information’).

Given these circumstances, surely the Petitioners were

due at least the minimal amount of process that this Court

and others have granted to not only American citizens but

even foreign enemy combatants. As a result, this Court

should grant review in these cases in order to remedy the

obvious and egregious constitutional due process errors

committed by the court below.

17

CONCLUSION

For the foregoing reasons, this Court should grant the

petitions for writs of certiorari.

Respectfully submitted,

REID ALAN COX

Counsel of Record

RENEE L. GIACHINO

CENTER FOR INDIVIDUAL FREEDOM

113 S. Columbus Street,

Suite 310

Alexandria, VA 22314

(703) 535-5836

Counsel for Amicus Curiae

Center for Individual Freedom

May 18, 2005