Two journalists facing jail for refusing to reveal their sources had their appeal quashed yesterday. A panel of three judges panel ruled unanimously that they had no constitutional right to withhold the identity of their contacts from a criminal investigation.
The case has wide-reaching ramifications for freedom of the press in the United States. Judith Miller of the New York Times and Matthew Cooper of Time Magazine have been held in contempt of court for refusing to answer questions before a grand jury.
The two journalists claimed that the leaks from government sources of a covert CIA officer's identity were protected by First Amendment privilege, which exempts reporters from revealing their sources to a criminal inquiry.
But in October Chief Judge Thomas Hogan found them in contempt and ordered their detention for 18 months or until the grand jury's term expires, whichever was shorter.
Yesterday, the US court of appeals for the District of Columbia upheld Judge Hogan's decision in an 81-page ruling, while suggesting that common law might provide journalists with protection from revealing the identity of their sources.
The panel cited a 1972 supreme court decision, Branzburg v Hayes, when a reporter was forced to testify about the production of illegal drugs. They said that the supreme court's "transparent and forceful" reasoning applied to the two reporters before the appeals court.
"In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish," Judge David Sentelle wrote for the panel, "the court stated that it could not 'seriously entertain the notion that the First Amendment protects the newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it'."
Lawyers for the Times and Time said they would appeal and would seek a stay to keep the reporters out of jail.
The case relates to the leaking of the identity of a CIA undercover agent, Valerie Plame, whose husband Joseph Wilson went to Niger at the behest of the CIA in 2002 to investigate reports that Iraq hoped to buy uranium for nuclear weapons. Some time after his return Mr Wilson accused the Bush administration of exaggerating the case for going to war.
Annoyed by Mr Wilson's public statements, two unnamed officials reportedly told the syndicated rightwing columnist Robert Novak that Mr Wilson's wife was a CIA "operative" and had helped arrange his trip to Niger.
The leak prompted such a row that the justice department appointed a special counsel, Patrick Fitzgerald, to investigate.