A Case for the Supreme Court

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We don't risk jail or fines lightly. It is our editorial policy to identify sources by name whenever possible. But sometimes we can obtain information only by promising confidentiality to a source, because many persons with important information won't speak to the press unless they are assured anonymity. Information given in confidence is especially valuable when it contradicts or undermines public positions asserted by governments or powerful individuals or corporations. Without confidential sourcing, the public would never have learned the details of many situations vital to its interests, from Watergate to Enron to Abu Ghraib.

Thus, Time Inc. last week took the unusual step of asking the U.S. Supreme Court to review lower-court decisions and rule that Matt Cooper may not be jailed and Time Inc. may not be fined for refusing to disclose confidential sources to a federal grand jury. Our petition argues that much has changed in the 33 years since the Supreme Court last looked at this issue and ruled against several reporters in a 5-to-4 decision that resulted in murky law.

Furthermore, the District of Columbia and 49 states now protect confidential sources. We think those protections strongly support our contention that the First Amendment (which protects freedom of the press) and common law should be held to extend the reporter's privilege to federal cases.

We believe the Supreme Court should recognize a reporter's privilege under federal rules of evidence adopted since 1972--rules that have led federal courts to recognize a psychotherapist-patient privilege, a spousal privilege, a cleric-communicant privilege and many others.

We argue further that jailing or fining a witness based on secret evidence submitted by the prosecutor violates a constitutional right to due process. The Supreme Court held last year that accused enemy combatants have a right to confront the evidence against them. We cannot understand how journalists doing their jobs should be denied that same basic right.

We believe we must protect our sources when we grant them confidentiality, an obligation we take seriously. We also believe we must resist government coercion. Put simply, the issues at stake are crucial to our ability to report the news and inform the public. We hope the Supreme Court will hear our case and rule in our favor. As it said many years ago, freedom of the press was established "not for the benefit of the press so much as for the benefit of all of us."