by Matt Barr

A source requesting anonymity

A lawyer representing Time, Inc. in the Cooper case, urging review by the Supreme Court:

The precise and somewhat convoluted history of the Plame case is less important than the legal principles which it frames. As Watergate illustrates, when reporting on sensitive subjects, particularly misconduct or excesses by government officials, journalists often have no choice but to seek information from individuals who would be at great risk of retaliation or embarrassment if their identities were disclosed. However imperfect the process may sometimes be, we have learned that a robust and inquisitive press is a potent check against abusive governmental power. And the press often cannot perform that service without being able to promise confidentiality to some sources. Those sources would not talk, and the public might never learn vital information, if reporters could be forced to disclose to the very government they are investigating the names of persons providing them with the information that government wishes to conceal....

Whatever the court may decide about a First Amendment or common-law evidentiary privilege for confidential sources, it will perform a service by taking the case and clarifying the law. Reporters need to know whether they can promise to protect a source's confidentiality and what protection, if any, the law will give them if they do. It ill-serves society for reporters and their lawyers to be operating in the dark--not knowing whether a reporter's promise to protect a source will be respected by the courts, or whether it will result, instead, in a prison term unless the reporter decides to break his word. By the same token, sources are entitled to know whether their need for anonymity will be honored.

A free and energetic press has proven to be among our most precious resources. It cannot function where rules are uncertain and simple miscalculations may result in incarceration. Whatever the extent or degree of a confidential-source privilege, and whether it is qualified by exigent circumstances or special law-enforcement needs, there is no player in this vitally important area that would not benefit from a clear articulation of the operative principles.

He lost... but if you can't beat 'em, join 'em?

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