Why Houston Rockets Coach Jeff Van Gundy Is a More Fitting Free Speech Hero Than New York Times Reporter Judith Miller

By MICHAEL C. DORF
Wednesday, May. 11, 2005

Last week, National Basketball Association Commissioner David Stern imposed the stiffest fine ever on a head coach: $100,000. What terrible offense did Houston Rockets Coach Jeff Van Gundy commit to warrant this unprecedented penalty? Did he punch, kick or bite a player?

Hardly. Van Gundy incurred Stern's wrath for stating publicly that the league had instructed its referees to call more fouls on the Rockets' All-Star center, Yao Ming. Worse, Van Gundy said his source was himself an NBA official, but he refused to name that official.

Until Van Gundy apologized and the league declared the matter closed, Commissioner Stern had even suggested that further sanctions against Van Gundy could be forthcoming. At that point Van Gundy joked that unlike New York Times reporter Judith Miller--who has just asked the Supreme Court to hear her case--if push came to shove, he would give up his source rather than go to jail.

Does Van Gundy's joke trivialize a truly important question of press freedom? After all, Van Gundy's own case only involves a monetary fine for statements about a mere game, whereas Miller faces imprisonment for statements concerned with national security.

In fact, there is a difference between the two cases, but Van Gundy, not Miller, is the more fitting hero of free speech. Moreover, his case dramatizes an important point: whatever scant protection the law provides for reporters to protect their sources, it provides woefully inadequate protection for whistleblowers who, like Van Gundy, are in other lines of work.

The Miller Case's Background

The Miller saga began in early 2002 when the Central Intelligence Agency sent former career diplomat Joseph C. Wilson IV to the African country of Niger to investigate reports that, in the late 1990s, Saddam Hussein had purchased yellowcake uranium. Wilson concluded that the reports were blatantly false, and said as much to the CIA and the State Department.

Nonetheless, in his January 2003 State of the Union address, President Bush claimed that British intelligence had learned that Iraq under Saddam had indeed attempted to purchase uranium from Africa. Wilson later inferred that the so-called British intelligence must have referred to the Niger story--known by U.S. intelligence to be bogus. Thus, in July 2003, Wilson wrote a New York Times op-ed explaining what he had learned on his trip to Niger and posing the question whether the Administration had deliberately used intelligence it knew to be faulty, in order to puff up its case for war.

Barely a week later, syndicated columnist Robert Novak came to the Administration's defense. Although Novak praised Wilson's prior diplomatic record, Novak argued that Wilson's 2002 mission to Niger was a low-level affair, the reports of which would not have reached then-director of the CIA George Tenet or President Bush. Hence, Novak concluded, neither the CIA nor the President knowingly made false claims in support of the war.

Ostensibly to underscore Wilson's lowly status, Novak explained: "Wilson never worked for the CIA, but his wife, Valerie Plame, is an Agency operative on weapons of mass destruction. Two senior administration officials told me Wilson's wife suggested sending him to Niger."

In other words, "senior administration officials" had, among other things, apparently disclosed to Novak that Valerie Plame was a CIA operative. Because Plame worked undercover for the CIA, that disclosure was a felony. A grand jury investigation into the identity of the officials who had leaked the information ensued. Special counsel Patrick J. Fitzgerald was eventually appointed to run the investigation.

And that is where Judith Miller, the New York Times reporter, comes in. In their efforts to discredit Wilson's account, the unnamed officials apparently contacted several reporters, including Novak, Miller, and Matthew Cooper, whose December 2003 Time magazine article also named Plame.

When the government subpoenaed Cooper and Miller, they refused to divulge their sources, saying they were confidential. The U.S. Court of Appeals for the D.C. Circuit disagreed, and, in a February 2005 decision, ruled that the reporters should go to jail for contempt. And indeed, the reporters are headed for jail unless they change their minds and testify, or the Supreme Court accepts review and rules in their favor.

The Legal Issues in the Miller Case

Reversal by the Supreme Court seems unlikely. In the 1972 case of Branzburg v. Hayes, the Court held that the First Amendment does not confer on reporters any right to protect confidential sources. That decision was based on the principle that reporters must obey the law, just as other people must. A press badge is not a license to break into the home of a news source, so why should it be a license to shield a source, if the source's identity is relevant to a criminal investigation?

Moreover, the emergence of the Internet means that the case for a reporter's privilege based in the First Amendment is weaker today than it was in 1972. Is every blogger in cyberspace entitled to protect her sources? If not, how are the courts to distinguish between "real" or "professional" reporters and "fake" or "amateur" ones? The very distinction is itself at odds with the First Amendment principle that all speakers and viewpoints are to be treated evenhandedly.

Cooper and Miller do have a little remaining ammunition, however. They raise additional legal claims and, perhaps more importantly, there is the odd question of Novak's involvement.

Novak has not said whether he testified before the grand jury. His silence is wholly appropriate, given the secrecy of grand jury proceedings. But if he has testified, presumably the grand jury already knows who tipped Novak off about Plame, and thus Special Prosecutor Fitzgerald does not need to pursue Cooper and Miller.

On the other hand, if Novak has not testified before the grand jury, why isn't he - like the other reporters--also facing jail time? It is possible that Novak was not called before the grand jury because he is a target of the investigation, but that too seems unlikely, for the statute forbidding disclosure of the identity of covert agents applies to select government officials, not members of the press, unless the latter engage in a pattern of activities designed to identify and expose such agents.

Why the Rationale for a Reporter-Source Privilege Does Not Apply in Judith Miller's Case

In any event, suppose one were to recognize some protection for reporters' sources--perhaps a limited common law privilege that could be abridged upon a strong showing of need for the evidence. Even so, the Administration officials who revealed that Plame works for the CIA are poor candidates for the protection of such a privilege.

The principal rationale offered for the reporter-source privilege is to protect whistleblowers. Reporters sometimes must offer confidentiality to their sources because those sources fear retaliation from employers or others if their identities are known. Those states that recognize an absolute or qualified reporter-source privilege do so because of a judgment that the interest in bringing to light evidence of wrongdoing or other matters of public concern outweighs any countervailing damage to the institutions or people that would prefer to keep the relevant information secret.

Even if that judgment is justified in the abstract, it is not warranted in circumstances like those of the Plame case. There was precious little public interest in the fact that Valerie Plame worked for the CIA. And the government's reason for wanting to keep that fact private--the security of Plame and other agents--is of the highest order. The only wrongdoing that came to light as a result of the disclosure of Plame's status as a CIA agent was that of the felonious disclosure itself. Here, the disclosure was the wrongdoing.

To be sure, the harm to Plame and the agency may not be very great in this case. For his part, Novak has written that Plame was a covert operative only in the most technical sense. Washington insiders (and presumably hostile governments and other bad actors as well) knew that Plame worked for the CIA as an analyst. The use of her name by the Administration officials who spoke with him, and then in his column, Novak says, thus falls outside the general rationale for keeping CIA agents' identities secret.

That may be true, but it seems more appropriate to make the relevant judgment here--the judgment as to whether to protect the identities of the officials who leaked Plame's identity to Cooper, Miller, Novak, and the other reporters--based on the general interest the law serves, rather than the fact that Plame's safety thus far appears not to have been endangered. The law appropriately condemns the revelation of the identity of covert operatives, and it is hardly workable to ask prosecutors and judges to decide in each case just how covert an agent's identity truly was. It is plainly the safest course to assume that covert agents' identities are in fact secret.

Why Van Gundy Should be Entitled to Protect his Source

Now let's return to the predicament of Rockets coach Jeff Van Gundy. Van Gundy is on stronger ground than Novak, Miller, and Cooper in his desire to keep the identity of the referee with whom he spoke confidential.

Why? For one thing, the NBA official purportedly told Van Gundy about serious misconduct: The league, he reportedly said, had instructed referees to call more fouls against a particular player, Yao Ming. By contrast with the Plame leak, the misconduct did not consist of the disclosure itself; it was a separate event.

Thus, if Van Gundy were now a broadcaster--as he was after he quit as head coach of the New York Knicks, but before he took over the reins in Houston--then the rationale for protecting his source would apply.

There are, of course, some legal distinctions between Van Gundy and a reporter like Judith Miller. To begin, Van Gundy can't claim any protection from the First Amendment because that provision, like most of the Constitution, only binds the government; it does not apply to private entities like the NBA.

But that fact does not count for very much here. Recall that, under Branzburg, there is no First Amendment right to protect sources, even against the government. So Miller, Cooper, and Novak are unlikely to have any more success in their First Amendment arguments than Van Gundy would--albeit for different reasons.

Some states, however, have recognized a "reporter's privilege" to protect confidential sources through state constitutional provisions, statutes, or judge-made common law. And it's here that Miller, Cooper and Novak have the edge on Van Gundy. Those states that do recognize a privilege to protect sources--possibly including Texas, depending on how one reads the leading cases--only extend the privilege to reporters and other researchers, and not, more generally, to whistleblowers reporting information of public interest, regardless of their occupation.

That limitation seems obsolete and problematic, however, under First Amendment cases barring speaker-based discrimination. Why shouldn't Van Gundy enjoy the same protection as a journalist? The very difficulty of drawing a line between journalists, bloggers, and others, suggests that the legal right to protect sources should be extended to anyone who needs it.

State Law Does Not Appear to Protect Van Gundy

Accordingly, a good argument can be made for legal protection of confidential sources for all people who call wrongdoing to public attention. In fact, however, whistleblower protection is the exception under the law, rather than the rule.

The Texas Whistleblower Act, for example, protects public employees against retaliation for reporting illegal conduct, but it does not protect private sector employees like Van Gundy or the anonymous official with whom he allegedly spoke.

Might Federal Anti-Discrimination Law Protect Van Gundy?

Federal law in some instances provides whistleblower protection. For example, earlier this year, the Supreme Court ruled in Jackson v. Birmingham Bd. of Educ. that Title IX of the Education Amendments of 1972 protected the male coach of a girls' high school basketball team against retaliation for his having reported sex discrimination in favor of the boys' team.

On its face, the Jackson ruling does not apply to Van Gundy, but perhaps it can be extended to help him. The ruling was not based on the specific text of Title IX, but rather on the general principle that to protect girls and women against sex discrimination, the law should protect those who report sex discrimination--whether or not the whistleblowers happen also to be victims or to be female.

Were his case before a court, Van Gundy could argue that the same logic applies to Title VII of the 1964 Civil Rights Act, which prohibits, among other things, employment discrimination on the basis of race and national origin. At various points over the last couple of seasons, Van Gundy has hinted that Yao does not receive the same respect from the referees as other players because he is Chinese. Van Gundy has not expressly made this charge, but if he were to do so, he could argue that just as Coach Jackson (the one in the Supreme Court case, not Phil!) was protected under Title IX, so he is protected under Title VII.

Ultimately, however, such a claim would likely fail for two reasons. First, the Jackson decision simply protects whistleblowers against retaliation. It says nothing about protecting the right of whistleblowers to keep secret the sources of their information. Although one can make an argument to extend such protection, this would require an expansion of the Jackson ruling.

Second, there is no evidence of race or national origin discrimination, and the charge that the NBA is trying to thwart Yao because he is Chinese--if it were made--would make no sense whatsoever.

Yao Ming is an incredible boon to the NBA, a physically gifted player with a winning personality from an emerging basketball power with a potential fan base of over a billion people. It is far more plausible that the league would do everything in its power to ensure that Yao gets the benefit of the doubt from the referees than that it would try to see to it that he be judged more harshly than his competitors.

Don't Shoot the Messenger

To say that Yao is not likely to be the victim of race or national origin discrimination is not to say, of course, that Van Gundy was wrong to express his concerns, notwithstanding his apology. At its most essential level, an allegation that the league would urge the referees to do anything but call the game fairly--for whatever reason--is a blow to the integrity of the game.

It is thus understandable that Commissioner Stern was annoyed with Van Gundy for publicly making the charge without providing a source who could either verify or contradict it. Stern explained that Van Gundy was fined not so much for the allegation itself, as for his refusal to cooperate with the investigation that Stern originally believed ought to ensue.

Nonetheless, whatever the law, Stern should not have fined the messenger. Like other whistleblowers, Van Gundy called attention to a potentially serious problem. With or without his cooperation, the league should address the problem, if there is one, directly. In the Plame/Novak/Cooper/Miller case, by contrast, there is no independent problem to address; the problem was created--not uncovered--by the leak at issue.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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