Isles weigh in
on ‘free press’

Hawaii's attorney general supports
journalists' right to protect sources

Hawaii has joined at least 34 other states in urging the U.S. Supreme Court to recognize a reporter's right to keep sources confidential.

State Attorney General Mark Bennett said he joined a bipartisan friend-of-the-court brief that is expected to be filed today in a case involving the leak of an undercover CIA officer's identity, after weighing the potential implications of the court's decision.

Mark Bennett: He joined a friend-of-the-court brief that went to the U.S. Supreme Court

"I think that ... a ruling that refuses to recognize the (confidential sources) privilege in any circumstances, that really is contrary to good public policy," Bennett said, adding that such a right is "part of a free press" and would be recognized "to an extent" in Hawaii thanks to a precedent-setting 1961 Hawaii Supreme Court case.

The ability of journalists to keep sources confidential is recognized by law or court rulings in all states but Wyoming, where the courts have not weighed in on the issue.

Utah Attorney General Mark Shurtleff was responsible for assembling attorneys general for the Supreme Court brief. He said getting a majority of the states' attorneys general to urge support for a reporter's shield privilege could influence the Supreme Court when it takes up contempt orders against New York Times reporter Judith Miller and Time magazine's Matt Cooper.

Miller and Cooper face 18 months in jail for refusing to testify before a grand jury as part of an investigation into who divulged the name of CIA officer Valerie Plame. A federal judge held the reporters in contempt last fall, and an appeals court rejected their argument that the First Amendment shielded them from revealing their sources.

Lawyers for Time magazine and the New York Times asked the Supreme Court earlier this month to throw out the contempt orders. The earliest the court could take up the case is this fall, after the court's summer recess.

"Overall, society is better off with an open press and an informed public," Shurtleff told the Associated Press yesterday. "In addition, it's important everyone knows what the rules are. Reporters in fairness need to know they're going to be protected."

In their brief the attorneys general asked the Supreme Court to adopt a balancing test that would weigh the public interest of journalism against the desire of law enforcement agencies to investigate the unauthorized release of sensitive information.

They want the court to settle contradictory rulings of federal district courts and follow the precedent set by some state courts that have recognized a reporter's privilege.

Bennett also said he is concerned that a Supreme Court ruling that denied the reporter's privilege would meddle with already established state law or court ruling.

"I feel first of all that if the federal courts don't recognize important state court privileges, then that will undermine the privileges themselves," he said.

The Hawaii Supreme Court, in the 1961 case involving a newspaper reporter, ruled that reporters have no more privileges than the public to keep sources confidential.

But it was also noted that a reporter's privilege on confidential sources should be taken on a case-by-case and balanced against First Amendment and other issues, including how important the disclosure of sources is to the case.