Douglas McCollam: Why the Plame Case Is So Scary

In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal, spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish. The resulting article, THE HASH THEY MAKE ISN'T TO EAT, ran in the paper’s November 15 edition. In it Branzburg, a graduate of Harvard Law School and Columbia University’s Graduate School of Journalism, revealed that he had changed the men’s names to protect their identity. The article was meant, Branzburg’s lawyer would later say, to inform readers about the views of “hippies and dissidents” who were becoming an increasingly influential presence in American life. For their part, “Larry” and “Jack” said the main reason they let Branzburg do the story was to “make the narcs mad.”

Mission accomplished. Shortly after the story ran, Branzburg was subpoenaed by the Jefferson County district attorney to appear before a state grand jury investigating the local drug trade. He was asked twice to name the men he had observed in possession of marijuana. He refused to answer and was held in contempt of court. Undaunted, Branzburg later wrote another exposé, this time detailing pot use in Frankfort, Kentucky’s capital city. He was again hauled before a grand jury and asked about the criminal acts he had observed. He again refused to testify.

During the next two years Branzburg’s appeal wound its way up to the United States Supreme Court and became the lead case in a series of disputes concerning what was then called the “newsman’s” privilege: the right of reporters not to reveal the sources for their stories, even if those sources were observed engaging in criminal conduct. It was the first time the Court had squarely faced the issue, and in vigorous questioning of Branzburg’s lawyer, Edgar Zingman, the justices struggled to outline the scope of the privilege they were being asked to recognize. Wasn’t Branzburg asking for the right to exist above the law? Justice Potter Stewart wondered. And, if the privilege was based on the First Amendment’s free speech guarantee, couldn’t any citizen claim the same right to refuse to testify? Who qualified for the privilege? wondered Chief Justice Warren Burger. Would it cover a private citizen who investigated a crime and then wrote a letter to the editor about it? How about pamphleteers? Would the authors of the Federalist Papers have qualified as “newsmen”?

Zingman bobbed and weaved, arguing for a broad privilege unless there was cause to believe the reporter had specific information about ongoing threats to national security, or a person’s life or liberty, and there was no other way to obtain the information. The Court rejected the argument. In a 5-4 decision, the Court found that there was no constitutional basis for a reporter to refuse to answer questions before a grand jury about sources, provided the investigation was in good faith. “From the beginning of our country the press has operated without constitutional protection for press informants,” Justice Byron “Whizzer” White wrote for the majority, “and the press has flourished.”

I thought about White’s conclusion as I sat on a wooden bench in federal court last December, rereading the decision and waiting for arguments to begin in what many consider to be the most important test case on press freedoms since Branzburg was handed down more than thirty years ago.

Was the press still flourishing? Just a few feet away Judith Miller, of The New York Times, and Matthew Cooper, of Time magazine, stood nervously chatting with small knots of supporters in a courtroom well stocked with Washington’s fabled media elite — many of whom appeared almost as antsy as Miller and Cooper. ...