Showdown for Press Freedom

The First Amendment suffered a blow in October when a federal trial judge sentenced two reporters to prison for up to 18 months each for refusing to comply with subpoenas to reveal their confidential sources before a federal grand jury. Their sentences were stayed pending a consolidated appeal, which is scheduled to be heard this Wednesday by a three-judge appellate panel in Washington.

This challenge to press freedoms comes courtesy of Patrick Fitzgerald, the United States attorney and special prosecutor charged with investigating accusations that the Bush administration illegally leaked the name of a covert Central Intelligence Agency operative, Valerie Plame, to the columnist Robert Novak in order to punish her husband, former Ambassador Joseph Wilson IV, for criticizing Iraq policy. Mr. Fitzgerald's inquiry has evolved into a major assault on the confidential relationship between journalists and their sources, which was of critical importance in exposing the very abuse of governmental power that prompted Mr. Fitzgerald's involvement in the first place.

We have special reason to be concerned. One of the journalists is a Times reporter, Judith Miller. The other is Matthew Cooper of Time magazine. But the possibility that journalists may be incarcerated merely for acting on principle to preserve press freedom ought to trouble everyone - including members of Congress, who should use this occasion to approve legislation explicitly extending safeguards against forced disclosure of sources to all federal proceedings.

Even in the absence of a new law, ample grounds for quashing the subpoenas can be found in the First Amendment, various legal precedents, Justice Department guidelines and common law recognition of at least a qualified privilege for reporters based on the nearly universal consensus among states supporting protection of a reporter's confidential sources. Local statutes in New York and Washington, where the two reporters work, make the privilege absolute.

On a procedural level, the prosecutor's success in the lower court was tainted by egregious unfairness, stemming from the undue secrecy of the prosecutor's filings. The case itself is full of unexplained oddities, starting with Mr. Fitzgerald's decision to focus on Ms. Miller's contacts even though she never wrote a single article about the Plame controversy. And then there is the mystery of Mr. Novak, who first published Ms. Plame's name, yet seems in no jeopardy even as his colleagues face jail time.

The larger issue, though, is the potential cost to government accountability, robust journalism and an informed citizenry. In his zeal to compel reporters to disclose their sources, Mr. Fitzgerald lost sight of that bigger picture. A wise appellate panel would not make the same error.

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