In re Judith Miller - National Security and the Reporter's Privilege

Panel On February 14, 2017, the Society sponsored a program to explore the common-law basis for a reporter's privilege and how best to strike the balance between the public's right to know and the Government's need to secure information in the national interest. The program began with remarks by Professor David Pozen of Columbia Law School. He provided the historical background to the case in which New York Times reporter Judith Miller refused to comply with a grand jury subpoena that sought access to documents and testimony related to conversations she had had with a confidential source. Professor Pozen also highlighted the unusual nature of this case - unlike the paradigm situation where a reporter seeks to protect the identity of a low-level whistleblower regarding government corruption, this case involved the strategic leaking of information by high-level government officials in an apparent effort to discredit a low-level government official.

Once the stage was set, the program moved to a reenactment of the argument before the D.C. Circuit. Laura R. Handman of Davis Wright Tremaine LLP presented the case on behalf of Judith Miller, arguing that the court should recognize a federal common-law reporter's privilege to protect the confidentiality of her sources. Amy Jeffress of Arnold & Porter Kaye Scholer LLP argued the case for the Government, stressing that the Supreme Court had already rejected such a privilege in Branzburg v. Hayes, 408 U.S. 665 (1972), and that lower federal courts are not empowered to create new privileges. The advocates argued their positions to Judge David S. Tatel and Senior Judge David B. Sentelle, two of the original panelists that heard the case in 2004.

Stuart Taylor Following the reenactment, former Deputy Attorney General James M. Cole, now with Sidley Austin LLP, joined Professor Pozen, Ms. Handman, and Ms. Jeffress on a panel* to discuss the broader implications of the case and the relationship between the press and the government. Moderator Stuart S. Taylor, Jr.,(pictured left) challenged the panel to consider how best to think about a reporter's privilege now that anyone with a Twitter account may qualify as a journalist. The panel also explored the benefits of the Department of Justice's current policy to restrict the ability of prosecutors to compel reporters and media outlets to disclose information as well as the drawbacks of having such a policy reflected only in internal guidance as opposed to a federal statute.

The Federal Judicial Center (FJC) videotaped the program which will soon be streamed on the web sites of the Society and the FJC.

* [Top photograph, pictured left to right: David Posen, Professor of Law, Columbia University; Laura R. Handman, David Wright Tremaine LLP; Amy Jeffress, Arnold & Porter Kaye Scholer; James M. Cole, Sidley Austin LLP]

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