With reporters Judith Miller and Matthew Cooper facing 18 months in jail for refusing to disclose their sources to the grand jury investigation of the Valerie Plame affair, the current issue of the Atlantic Monthly contains a timely item about the legal postion of journalists protecting a source in the United States.

The article, by Washington Post editorial writer Benjamin Wittes, focuses on Branzburg v. Hayes, a 1972 Supreme Court that is central to this topic in the United States.

In Branzburg, the Court rejected the idea that the First Amendment guarantee of press freedom implies a reporters’ privilege akin to some other professions’. In practice, however, Wittes says, journalistic privilege “exists beyond its legal reality” becuase judges view journalists’ silence as honorable and prosecutors are weary of the the battle of principles that would inevitably occur if they were to subpoena a journalist.

Moreover, Wittes writes, the dissenting and concurring opinions in Branzburg calling for journalists to enjoy a qualified privelege — which could be overridden by prosecutors only under certain specific circumstances — has subsequently been very influential in the lower courts, and individual states have legislated to create some form of journalistic privilege.

Update: Today’ WaPo editorial says:

Traditionally, Justice Department guidelines, prosecutorial discretion and court rulings have tended to limit the impact of leak investigations on the press. But the cases in the pipeline — civil and criminal — suggest that stronger protections are needed. If the federal courts will not protect the press’s ability to honor promises of confidentiality, Congress should establish the privilege, as most states have done. The public will be ill served if information stops flowing because reporters cannot promise their sources confidentiality without risking imprisonment.

Witte also notes an important distinction between journalists’ claim to professional privilege and that of physicians, lawyers and priests: Unlike the confessions heard by these professionals, those heard by journalists are usually precisely the leaks that constitute the crime under investigation, be it industrial espionage or a disclosure of official secrets.