# Amicus Curiae Brief — Miller v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0876%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1150

## Text

() 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, , 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0876%3A7. Public record. Not legal advice.