Jailing a reporter ... legal question.

[AlecWest]

A Time Magazine reporter will be sent to jail if he refuses to testify and reveal the sources of his story. This situation has happened many times before with other journalists. But, there's one question that has always puzzled me.

Assume he gets sent to jail. How long can they keep him there? Surely, there must be some sort of limit to this ... otherwise, it would tread into the area of "cruel and unusual punishment." If anyone knows the answer to this - how long he'll have to spend in jail if he maintains his refusal to talk - let me know.

[lordsmurf]

As far as I know (and I pulled the old college journalism law book off the shelf), what typically happens here is the journalist fails to respond to the subpeona, and may be held in contempt of court.

What is going on here, with these two reporters (only 1 is from time), is not common at all. Generally, you have protection by the first amendment, which protects sources. By there is a muddled gray area here, and I don't remember if this ever went up any higher.

I'd have to read the 50-page chapter.
Maybe later?

[AlecWest]

Well, all I know is that when a judge sends someone to jail, they have to specify a sentence. In other words, no judge can say, "I sentence you to jail until you either talk or your body rots from old age." And, I'm curious what kind of sentence that might be. Haven't seen any word on the potential length of such a sentence mentioned in the media.

[MackemX]

would it just be classed as witholding information? As AlecWest mentions how could you judge how important that information is if you don't know it

it's a woman isn't it? as it's just been on the news here and apparently the source has given permission to be named anyway

[Mister Flonk-Flonk]

It's Tipper Gore.

[AlecWest]

I guess there are supposed to be two reporters involved ... and have heard that sentencing can range from 70 days in jail to 6 months of home confinement (ala "ankle bracelet"). If this is a "first offense" for either of them, home confinement sentencing seems more likely.

I'm just guessing here ... but I suspect that the editor(s) and publication(s) involved are more pissed off at the court than they are at their reporters. If so, and if home confinement is the sentence, I suspect the publications will support their reporters by giving them assignments that can be done by phone or email/web ... or by outright giving them administrative leave with pay as a metaphorical way of flipping an unfriendly hand gesture at the court.

[lordsmurf]

I pulled these references from the book:

- Branzburg v. Hayes (1972)
- Privacy Protection Act of 1980
- Riley v. Chester (1979)
- U.S. v. Smith (1998)
- U.S. v. Burke (1983)
- U.S. v. Cutler (1993)
- State v. Rinaldo (1984)
- U.S. v Criden (1980)
- Scarce v U.S. (1993)

The courts have to prove ALL THREE of these:

(A) That there is a probably cause to believe that the reporter has information that is clearly relevant to a specific violation of the law.
(B) That the information sought cannot be obtained by alternative means less destructive of the First Amendment rights
(C) That the state has a compelling and overriding interest in the information.

NOTE: When it comes to passing the litmus test for (C), I really do not believe they have it. There is not super interest, beyond that of BS politics.

Important jargon:
- contempt power
- shield laws
- protection of sources
- Stewart test
- First, Fourth and Sixth Amendments.

In all cases, it appears that the judge must issue a contempt ruling and fine/jail the person. It cannot be a "Guantanamo-style" jailing.

I need to read this book again, it's been a long time.

[Noahtuck]

Well from what i saw on the news tonight the one guy got permission from his source to reveal him or her, so he didn't have to go to jail.

The other one, a lady, was already sent to jail for refusing to reveal her source.
And from what i have seen, they don't have to set a time for release, the judge can hold you in contempt & order you held until you comply with the courts order.
They have done it before

[lordsmurf]

the judge can hold you in contempt & order you held until you comply with the courts order.
They have done it before

Case reference, please?

[Noahtuck]

the judge can hold you in contempt & order you held until you comply with the courts order.
They have done it before

Case reference, please?

Yeah, like i keep some law books or papers around just in case
My memory is not that bad, over the years there have been people on the new's ect. where judge's have held people in contempt for refusing to comply with the courts orders and are held in jail until they decide to comply. are told they will be held until such time as they decide to comply, so it is basically up to the person how long they want to be held 8)

I remeber some lady having that happen to her and it was not even for something as bad as what seem's to be going on here.
They may have eventuallybeen released for whatever reason, but they can be held until they comply with the orders.

Now i was not paying that much attention today when the news was on and they were talking about the lady they jailed for not telling her source, but, i don't recal them saying he said a specific amount of time for her to be held

[Noahtuck]

Right here....

Chief U.S. District Judge Thomas Hogan ordered correspondent Judith Miller to jail immediately and said she must stay there until she agreed to testify or for the rest of the grand jury's term, which lasts through October.

http://news.yahoo.com/news?tmpl=story&cid=564&ncid=564&e=2&u=/nm/20050706/ts_nm/media_leak_dc_11

So i guess there is a sort of time limit there, or until the grand jury term is up, but i do remember where people have been put away with one condition,
comply or stay. maybe it has changed over the years but i know it has been done, seem to remember something about someone being held for almost 2 years for not compying with a judges orders. but what do ya want, i'm old, married with teenage children, i'm amazed i can find my way home let alone remember every detail of everything i've seen my whole life

[adam]

In civil contempt you are held until you "purge yourself" of your contempt. Usually this is done by doing whatever the court ordered you to do in the first place. Sometimes if the case is disposed of and, essentially no harm no foul as a result of your noncompliance, the judge will consider you purged. Otherwise, you sit in jail indefinitely until you comply. Yes there is no limit except the judge's will. The judge can of course put any time limit he wants into the contempt order, but there is no requirement that he do so.

I had a guy held in contempt for 3 months for failing to answer discovery. It was over a small amount of money too, $5000. He finally gave us the discovery we sought.

[CuCuy]

I think it's important to keep in mind that this isn't just a simple first amendment issue. The outing of a CIA operative is a federal crime, and refusing to name the leak source(s) could be construed as aiding and abetting or obstruction. I hope the bastards who leaked Plame's identity are convicted and sent to prison.

[lordsmurf]

I think it's important to keep in mind that this isn't just a simple first amendment issue. The outing of a CIA operative is a federal crime, and refusing to name the leak source(s) could be construed as aiding and abetting or obstruction. I hope the bastards who leaked Plame's identity are convicted and sent to prison.

I would not agree to such a blanket statement. Sometimes, the people's right to know should override the secrecy of one operative (who can be put behind a CIA desk or on some other assignment).

This is a First Amendment issue.

This also makes for an interesting read:
http://www.onlinejournal.com/Media/070205Burns/070205burns.html

[lordsmurf]

the judge can hold you in contempt & order you held until you comply with the courts order.
They have done it before

Case reference, please?

Yeah, like i keep some law books or papers around just in case

I wanted to read more.

[AlecWest]

In civil contempt you are held until you "purge yourself" of your contempt. Usually this is done by doing whatever the court ordered you to do in the first place. Sometimes if the case is disposed of and, essentially no harm no foul as a result of your noncompliance, the judge will consider you purged. Otherwise, you sit in jail indefinitely until you comply. Yes there is no limit except the judge's will. The judge can of course put any time limit he wants into the contempt order, but there is no requirement that he do so.

Hmmm ... if true, then this situation is ripe for some lawyer to challenge on the basis of "cruel or unusual" punishment. It would be interesting to see a precedent setting case along those lines.

But (snicker) here's another thought. Let's say a reporter throws up his hands and says, "OK, OK, you win ... my source was Joe Jones at such-and-such address." Do they let the reporter go at that point ... or do they verify that, in fact, Joe Jones was the source first? And what if Joe Jones denies being the source?

[AlecWest]

I think it's important to keep in mind that this isn't just a simple first amendment issue. The outing of a CIA operative is a federal crime, and refusing to name the leak source(s) could be construed as aiding and abetting or obstruction. I hope the bastards who leaked Plame's identity are convicted and sent to prison.

I concur with that. Problem is, what is the impetus behind a witness coming clean with a reporter if the witness knows that a judge will order that reporter to name the source? If source confidentiality has no protection, especially in a case like this where the witness's life may be in jeopardy by having his identity revealed, investigative reporters in the future will encounter more people like "Sergeant Schultz" on the "Hogan's Heroes" show ... people who only say, "I see nothing, I hear nothing, I know nothing," allowing people guilty of high crimes and misdemeanors to escape the light of day (and justice).

[adam]

Hmmm ... if true, then this situation is ripe for some lawyer to challenge on the basis of "cruel or unusual" punishment. It would be interesting to see a precedent setting case along those lines.

The eighth amendment protection against cruel and unusual punishment really doesn't apply to the length of jail terms. It is really intended for things like torture and abuse and embarassement. It has been unsuccessully raised against mandatory minimum prison sentences and it was once raised, again unsuccessfully, in the case of a man sentenced to life imprisonment under California's "3 strikes your out law" for stealing $120 dollars.

Civil contempt is purely coercive, not punitive where you actually must make the "punishment fit the crime." If information isn't priviledged, and you are ordered by a court to dislose it, then you can be detained until you do so or until your refusal no longer has any effect. There's nothing cruel about an indefinite jail term because the person can end it at any time. The eighth amendment is not intended to protect people's morals or loyalty.

You are talking about extreme cases where someone is willing to stay in jail forever if need be as a matter of principle. One option that a judge has is to hold the person in criminal contempt, as opposed to civil contempt. The judge would then have to have him formally charged and convicted and sentenced to a set amount of time.

But (snicker) here's another thought. Let's say a reporter throws up his hands and says, "OK, OK, you win ... my source was Joe Jones at such-and-such address." Do they let the reporter go at that point ... or do they verify that, in fact, Joe Jones was the source first? And what if Joe Jones denies being the source?

Whenever someone wants to be released after being held in contempt they must file a "petition to purge contempt." There will be a hearing and yes it will more or less be verified that the information disclosed was done so in good faith, whether it turns out to be truthful or helpful or otherwise.

Also even if they guy gives up the info on day 1, contempt orders usually require a minimum number of days in jail too. For most stuff its 3 days.

[lordsmurf]

I read somewhere the other day that civil contempt had a maximum sentence.

But I thought that this was a criminal contempt issue. From what you're saying, it sounds like that has a maximum too.

[adam]

The authority to hold parties in contempt, civil or otherwise, is authorized under federal law (Title 28 USCS 636.) Criminal contempt is an actual crime and it has a maximum sentence of 30 days but you can be sentenced on multiple counts and they can run consecutively.

Civil contempt is not a crime, its just a classification that courts can impose on you to compel you to abide by a court order, which has the full force and effect of the law. If you are in contempt you can be held until you comply with the court's orders. Under federal law there is no limit to how long you can be held. As always, states can impose whatever additional limits on their authority they want so any given state has its own maximum contempt sentence...but for many states there is indeed no limit.

It is often said that a person held in contempt, "holds the key to their release." That is why courts have no absolute limit imposed on them, because the only thing they make mandatory is that he stay there 1-3 days (usually), any additional time served the person imposes on themself by continuing to violate the court order.

Think of it like this, the court order is standing law. Each day he refuses to obey it he breaks the law again. He's not actually serving any kind of sentence, he's in a state of perpetual violation.

[AlecWest]

It is often said that a person held in contempt, "holds the key to their release."

Sometimes yes, sometimes no. At the beginning of the Watergate incident, Woodward and Bernstein (as far as I know) didn't know the identity of Deep Throat. He contacted them and meetings were arranged by signals (a flower pot on a balcony, or something like that). He truly was an anonymous source at the beginning.

If a reporter told a judge, "But your honor, I honestly don't know who the source is ... only that his/her information appears to be corroborated upon investigation," could a judge order a reporter to "set up" the source for purposes of revealing identity?

[hech54]

There is no use crying First Amendment folks.....those are being whittled away slowly but surely.

[adam]

If a reporter told a judge, "But your honor, I honestly don't know who the source is ... only that his/her information appears to be corroborated upon investigation," could a judge order a reporter to "set up" the source for purposes of revealing identity?

Absolutely not, and that person could not be held in contempt either. You aren't witholding evidence if you don't know it and a court cannot make you take extraordinary measures to obtain it.

[AlecWest]

If a reporter told a judge, "But your honor, I honestly don't know who the source is ... only that his/her information appears to be corroborated upon investigation," could a judge order a reporter to "set up" the source for purposes of revealing identity?

Absolutely not, and that person could not be held in contempt either. You aren't witholding evidence if you don't know it and a court cannot make you take extraordinary measures to obtain it.

Aha ... so the best advice to reporters would be, if they're ever questioned about a source, to say it's an "anonymous" source whose information merely bears out upon investigation.

[CuCuy]

I think it's important to keep in mind that this isn't just a simple first amendment issue. The outing of a CIA operative is a federal crime, and refusing to name the leak source(s) could be construed as aiding and abetting or obstruction. I hope the bastards who leaked Plame's identity are convicted and sent to prison.

I would not agree to such a blanket statement. Sometimes, the people's right to know should override the secrecy of one operative (who can be put behind a CIA desk or on some other assignment).

This is a First Amendment issue.

This also makes for an interesting read:
http://www.onlinejournal.com/Media/070205Burns/070205burns.html

Everything that I have read indicates that the outing was done for retaliatory purposes. Assuming this is correct(purely speculative), in what way would this fall under the category of "public right to know"?

[AlecWest]

If a reporter told a judge, "But your honor, I honestly don't know who the source is ... only that his/her information appears to be corroborated upon investigation," could a judge order a reporter to "set up" the source for purposes of revealing identity?

Absolutely not, and that person could not be held in contempt either. You aren't witholding evidence if you don't know it and a court cannot make you take extraordinary measures to obtain it.

Adam, one more question on re-direct (grin). If the "anonymous" source angle would protect reporters from judicial interference, why don't editors mandate that all reporters under them use this tactic ... to just say, "My source contacts me anonymously and his/her information just appears to bear out."??? Is this whole thing with the two reporters just an example of journalistic arrogance ... delighting in saying, "We know who it is but we aren't going to tell you."???

It would seem to me that if a story is important enough (and the outing of a CIA agent's identity would certainly qualify), editors would insist that reporters do everything in their power (even fib) to stifle judicial interference. Maybe I'm missing something but this whole brouhaha doesn't seem to make sense ... unless journalistic arrogance is at play.

[adam]

Its not journalistic arrogance, its honesty. They admitted they know the identity of their source but will not reveal it. They could have just lied and maybe gotten away with it, but its hardly worth the risk. They could be charged with fraud (on the court), perjery, obstruction of justice, and many many more things in a case like this which involves a federal investigation.

As far as editors instituting a policy like that, that is called a conspiracy and that REALLY makes for big news. Courts do not look kindly on what's called conscious ignorance, and they certainly don't appreciate being lied to. Such a policy would be illegal and would get them into alot of trouble if discovered.

Besides, I don't think a court would even buy such a claim. Big news agencies don't run big stories based on nothing more than anonymous tips. They keep their sources anonymous, but they know who they are.

[pchan]

So no more whistle blower ?

[AlecWest]

Big news agencies don't run big stories based on nothing more than anonymous tips. They keep their sources anonymous, but they know who they are.

Washington Post - Watergate. In the beginning, that's exactly what they did. Even Ben Bradlee was kept in the dark at first ... legitimately, since Woodward and Bernstein really didn't know his identity. Even cops don't discount the value of anonymous tipsters.

But, in the majority of situations like this, I suspect you're correct ... that reporters do know the identities of sources. Integrity??? Honesty??? This is a tough one because, if I was a reporter, knew my source's identity, and also knew that the source's information affected people in high places (people who may be motivated to kill the source to keep him quiet), my "integrity" would compel me to protect that source at all costs ... even to fib, if need be, to protect my access to that source.

[lordsmurf]

There is another problem few people understand... if you work with a confidential source, and then blow their cover, they can sue you, and they have been known to win. Breach of contract, maybe even slander/libel. See "promissory estoppel" and the case "Cohen v. Cowles Media Co." Again, reading out of the ol' college book.

Revealing the source can also discourage future anonymous sources, therefore stifling the free flow of information. Can you see the First Amendment issue?

Typically, if a journalist feels the person has committed an unethical/immoral crime, they will reveal those people to the authorities, using their own best judgment. You can bet that if the confidential source was a serial pedophile or murderer, they'd be turned in. But what we have here is a political kangaroo court, so I can readily see why the journalists are refusing to cooperate.

edited for spelling