New petitions at the Court
on May 12, 2005 at 3:12 pm
News reporters for The New York Times and Time magazine have filed petitions at the Supreme Court seeking recognition of a “reporter’s privilege” not to be compelled to reveal confidential sources. The petitions are Miller v. U.S. (docketed as 04-1507), involving Judith Miller of The Times, and Cooper, et al., v. U.S. (04-1508), involving the magazine’s Matthew Cooper. (Howard Bashman at How Appealing blog, in a post at 11:20 a.m., provides links to both petitions.)
Another new petition, filed Thursday, seeks to draw the Court back into the constitutional puzzle over campaign finance. The case, not yet assigned a docket number, is Vermont Republican State Committee, et al., v. Sorrell. The case has had a long and tortuous journey through the Second Circuit, but finally has reached the Court. Public interest groups that favor the Vermont law at issue in the case said they will file a response urging the Court to hear the case. Brenda Wright, managing attorney for one of those groups, the National Voting Rights Institute, noted in a statement that the case “is the first in which a federal appeals court has ruled that limits on campaign spending can be upheld” even though the Supreme Court struck down spending curbs in Buckley v. Valeo in 1976.
The Times and Time reporters’ petitions, besides raising the “reporter’s privilege” issue under the First Amendment and federal common law, pose a due process question based upon denial of access to secret evidence presented to the court by the federal prosecutor investigating the Valerie Plame leak incident. The reporters have been held in contempt for refusing to disclose their sources to that prosecutor.
Here are the questions raised by the Miller petition:
“1. Should the Fist Amendment provide any protection for journalists subpoenaed to reveal the identity of confidential sources in federal criminal proceedings?
“2. Should a federal common law privilege be recognized under Federal Rules of Evidence 501 to provide any protection for journalists who are subpoenaed in federal criminal proceedings to reveal the identity of their confidential sources?
“3. Is it consistent with the Fifth Amendment for a journalist to be adjudicated in contempt and ordered imprisoned for up to 18 months on the basis of evidence submitted ex parte to the district court which the journalist and her counsel were denied the opportunity to see or rebut?”
These are the questions raised in the Cooper petition:
“1. Whether a reporter’s privilege exists under Federal Rule of Evidence 501 and the common law, or under the First Amendment, that provides protection against compelled disclosure of confidential source information.
“2. Whether the Due Process Clause provides protection against imprisonment or fines for contempt based on secret evidence presented ex parte by a prosecutor.”
The new petition on campaign finance presents these questions:
“1. Whether Vermont’s mandatory candidate expenditure limits violate the freedom of political speech guaranteed by the First and Fourteenth Amendments to the United States Constitution.
“2. Whether Vermont’s $200-$400 limits per election cycle on campaign contributions to state candidates violate the freedoms of political speech and association guaranteed by the First and Fourteenth Amendments to the United States Constitution because they are unconstitutionally low.
“3. Whether Vermont’s presumption of coordination, which provides that an expenditure made by a political party or political committee that primarily benefits six or fewer candidates is presumed to be a related expenditure subject to contribution limits, violates the freedoms of political speech and association guaranteed by the First and Fourteenth Amendments to the Unites States Constitution.”
It appears that the Court will not act on any of these petitions until after its summer recess. The normal briefing schedule would not be completed prior to the expected end of the current Term late next month.
