MORE RE MILLER AND COOPER

Here is an exerpt from Judge Tatel's opinion (from Editor and Publisher) which more clearly fleshes-out what I was trying to express in my earlier post :

One last point. In concluding that no privilege applies in this case, I have assigned no importance to the fact that neither Cooper nor Miller, perhaps recognizing the irresponsible (and quite possibly illegal) nature of the leaks at issue, revealed Plame’s employment, though Cooper wrote about it after Novak’s column appeared. Contrary to the reporters’ view, this apparent self-restraint spares Miller and Cooper no obligation to testify. Narrowly drawn limitations on the public’s right to evidence, testimonial privileges apply “only where necessary to achieve [their] purpose,” Fisher v. United States, 425 U.S. 391, 403 (1976), and in this case the privilege’s purpose is to promote dissemination of useful information. It thus makes no difference how these reporters responded to the information they received, any more than it matters whether an attorney drops a client who seeks criminal advice (communication subject to the crime-fraud exception) or a psychotherapist seeks to dissuade homicidal plans revealed during counseling (information Jaffee suggested would not be privileged, see 518 U.S. at 18 n.19). In all such cases, because the communication is unworthy of protection, recipients’ reactions are irrelevant to whether their testimony may be compelled in an investigation of the source.


Indeed, Cooper’s own Time.com article illustrates this point. True, his story revealed a suspicious confluence of leaks, contributing to the outcry that led to this investigation. Yet the article had that effect precisely because the leaked information -- Plame’s covert status -- lacked significant news value. In essence, seeking protection for sources whose nefariousness he himself exposed, Cooper asks us to protect criminal leaks so that he can write about the crime. The greater public interest lies in preventing the leak to begin with. Had Cooper based his report on leaks about the leaks -- say, from a whistleblower who revealed the plot against Wilson -- the situation would be different. Because in that case the source would not have revealed the name of a covert agent, but instead revealed the fact that others had done so, the balance of news value and harm would shift in favor of protecting the whistleblower. Yet it appears Cooper relied on the Plame leaks themselves, drawing the inference of sinister motive on his own. Accordingly, his story itself makes the case for punishing the leakers. While requiring Cooper to testify may discourage future leaks, discouraging leaks of this kind is precisely what the public interest requires.

(emphasis and links mine)