Journalists caught in the crossfire: Robert Novak, the First Amendment, and journalist's duty of confidentiality.

• Author: Eun, Eunnice

INTRODUCTION

A single statement by a journalist can set off a firestorm of criticism. In the case of columnist Robert Novak, his statement also fired up a debate on the limits of speech protected under the First Amendment. Novak set headlines across the country ablaze when in July of 2003 he revealed that Valerie Plame, the wife of a prominent critic of President Bush's policy on Iraq, was a CIA operative, attributing the source of this information to "two senior administration officials." (1) In revealing Plame's identity as a CIA agent, Novak, widely known as a conservative journalist, was attempting to show that she had a hand in sending her husband and critic of the Bush administration, Joseph Wilson, to Niger to investigate possible Iraqi purchases of uranium. (2) Instead, Novak sparked a federal grand jury investigation into whether members of the Bush administration leaked the identity of Plame.

Journalists, like other citizens, enjoy rights of free speech and free press. (3) Therefore, journalists should be able to publish information in the public interest without being restrained by fear of criminal charges. The scope of these freedoms, however, comes under question when it is perceived that others, namely federal officials, are using constitutional rights and journalistic privilege as a shield to protect themselves from being punished for revealing information they would otherwise face criminal charges for. Reporters themselves may have a more acute insight into the dilemma Novak's case poses, since journalists grant anonymity to sources in an effort to provide more depth and insight to their readers. However, in the public's eye, Novak's grant of anonymity to "two senior [Bush] administration officials" may seem to obscure from the public the story underlying the revelation of Plame's identity. (4)

Under the Intelligence Identities Protection Act, the government may prosecute anyone with authorized access to classified information, such as the identity of a covert operative, who intentionally discloses that information to someone not authorized to receive that classified information. (5) There is no question that if a senior administration official who had authorized access to Plame's identity leaked that secret information to Novak, that official, if found, will face prosecution under the statute. However, the question that remains in the minds of some is whether Novak could or should face criminal consequences for his actions in further disclosing that information. If journalists could be criminally punished for revealing the identity of covert agents, this would, in turn, raise serious questions regarding the conflict between criminal prosecution and journalistic privilege, as well as the potential constitutional consequences of criminally punishing reporters who exercise their First Amendment rights. The tension, however, remains between grand jury investigations and journalists who maintain promises of confidentiality in spite of the possible criminal consequences. This Note examines both sides of this story.

The public reaction to Novak's actions is what first spurred inquiry into this subject. Thus, this Note begins by explaining the unfolding of events leading up to the exposure of the former agent, following with the response of the public to Novak's decision to publish Plame's identity. This Note will then focus on whether Novak could be held criminally liable for making Plame's identity public, discussing the current state of the law under the Intelligence Identities Protection Act and briefly touching on past prosecution under the statute. Section III will then move towards the discussion of the criminal penalties other journalists in this case face for refusing to disclose the identities of the administration officials who leaked Plame's identity to them under the promise of anonymity and confidentiality. Implicit in this discussion is an examination of journalistic privilege and how this ethical duty fits into a reporter's duty under the law. The following section will briefly discuss civil solutions to the fear of abuse of First Amendment protections. This Note will conclude by warning of the constitutional dangers in failing to follow the modern trend toward recognition of a reporter's privilege, including its chilling effect on the dissemination of news to the public.

I. THE CONTROVERSY AND CRITICISM BY THE PUBLIC AND JOURNALISTIC PEERS

1. The Spark That Lit the Controversy: A Factual Background

   In February 2002, former ambassador Joseph C. Wilson IV was sent to Niger by the Central Intelligence Agency to investigate the country's alleged sale of uranium yellowcake to Iraq in the late 1990s. (6) Finding nothing to substantiate the claim, Wilson briefed the CIA and "went back to [his] life." (7) Wilson thought the matter was settled until in January 2003 President George W. Bush, citing a British report, made reference in his State of the Union address to Iraq's alleged attempts to buy uranium from Africa, stating, "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." (8) In a column published by the New York Times in July 2003, Wilson wrote that he had debunked this claim at the conclusion of his mission and had orally briefed the CIA on his findings. (9) He accused the Bush administration of twisting "some of the intelligence related to Iraq's nuclear weapons program" to "exaggerate the Iraqi threat," despite his findings to the contrary. (10)

   Just over a week after Wilson's column was published, syndicated columnist and conservative television commentator Robert Novak wrote an article in which he exposed Wilson's wife, Valerie Plame, known by friends as a private energy consultant, to be a "[CIA] operative on weapons of mass destruction." (11) In an apparent attempt to undermine Wilson's credibility, (12) Novak then stated that he was told by "[t]wo senior administration officials" that Plame had suggested sending Wilson to investigate reports that Iraq had purchased uranium from Niger. (13)

   Although Novak alone published Plame's identity, later media reports cited yet another "senior administration official" as saying that Plame's identity had actually been leaked to "at least six Washington reporters" by "two top White House officials." (14) White House Press Secretary Scott McClellan categorically denied any knowledge of the leak, stating, "[N]o one was certainly given any authority to do anything of that nature. And I've seen no evidence to suggest there's any truth to it. I want to make it very clear, that is simply not the way this White House operates." (15) Novak reaffirmed his receipt of the information, declaring, "I didn't dig it out, it was given to me.... They thought it was significant, they gave me the name and I used it." (16)

   After an initial probe by Attorney General John Ashcroft, the Department of Justice turned the leak investigation over to United States Attorney Patrick Fitzgerald, who was appointed Special Counsel in December 2003. (17) Since Fitzgerald's appointment, journalists, news media outlets, and White House records concerning contacts with them have been subpoenaed by a federal grand jury investigating the disclosure. (18) So far, Tim Russert of NBC News, Walter Pincus of the Washington Post, and Matthew Cooper of Time magazine have cooperated in some capacity, (19) though Cooper, along with Judith Miller of the New York Times, now faces 18 months imprisonment for refusing to actually name the two Bush administration officials who leaked Plame's identity. (20) Robert Novak has so far refused to say whether he has cooperated with prosecutors. (21)

2. The Perception of Novak 's Alleged Wrongdoing by the Public and the Press: Anecdotal Evidence

   Thus far, much of the public's attention seems to have focused on the possibility that senior Bush administration officials could have been the cause of the leaked information. Novak's actions, however, have not escaped criticism in the public eye.

   In the aftermath of the leak, members of the public expressed surprise, frustration, and even outrage at the fact that Novak would not face criminal sanctions for his seeming wrongdoing in revealing the identity of a CIA operative. In Newsweek, one reader said the real damage was done not by the sources of the leak but by Novak himself, saying that even if Bush administration officials leaked Plame's identity "inadvertently, negligently, or even intentionally, no harm was done until Novak decided to identify Plame and her associates, and possibly place the nation at risk under the guise of journalistic privilege." (22) Another reader seemed to question the fairness of permitting journalists to find shelter in the freedom of speech even when it "c[ould] destroy a career and risk a life ... [.]" (23) Others went further, alleging that Novak was, or should be, guilty of a federal crime. (24) Even Plame's husband, former ambassador Joseph Wilson, expressed on Nightline that it seemed to him that "there's some question as to whether or not the reporter, by not revealing that source, is perhaps an accessory [to a crime]." (25)

   Novak's peers seem to have voiced a more mixed reaction. Washington Post Media Analyst Howard Kurtz agreed that it is not a crime to receive confidential information and sometimes even publish it for the public good; however, he cast doubt on the wisdom of Novak's actions, saying, "That does not always make it right for the journalist to publish information that could jeopardize, for example, a military operation or police investigation. Each situation has to be carefully weighed on its merits." (26) Steve Huntley, editorial page editor of the Chicago Sun-Times, fully supported Novak's decision to publish the identity of Plame, saying, "I trust his judgment and accuracy unquestionably, and his ethics as well.... Our business is to report news, not to slam the door on...