It's one of those elemental questions in a democracy: If a state secret gets handed to a journalist, and it gets published, who is to blame? The state, of course, says that everyone involved is to blame -- both the journalist and the mole. The press, though, will tell you that it has no responsibility to help the state keep its secrets. Indeed, its contribution to democracy is precisely that of making it more difficult for the government to keep secrets.
On Wednesday the German Constitutional Court in Karlsruhe heard arguments in just such a case. In April 2005, the monthly news magazine Cicero published an article on the Islamist terrorist Abu Musab al-Zarqawi in which a top-secret report from Germany's Federal Criminal Police Office (BKA) was quoted from. Not long afterwards, the magazine's office in Potsdam was searched along with the apartment of Bruno Schirra who wrote the article. Unimpressed, Cicero Editor in Chief Wolfram Weimer filed an official complaint that the search had violated the freedom of the press as guaranteed in the German constitution.
Despite the fact that such searches aren't exactly unheard of in Germany, Cicero could become a landmark case in determining the contours of press freedom in the country. Public prosecutor Lutz Diwell says there can be no such thing as a journalist's privilege when it comes to exposing state secrets. "Press freedom," he said, "as granted by the constitution is not unlimited."
But Cicero lawyer Alexander Ignor says that's not the point. He argues that BKA officials, when they searched the magazine's editorial offices, weren't actually interested in finding material to incriminate Weimer and his journalists. Rather, they were trying to figure out who passed on the top secret document in the first place -- a clear violation of reporters' rights to protect their sources.
In many ways, it is the same question the United States spent the summer dealing with in the form of the Valerie Plame affair, the CIA operative whose identity was leaked to the press. A number of US journalists spent time in jail for their refusal to cough up their sources.
But the question is not new in Germany either. The famous "Spiegel Affair" in 1962 saw Der Spiegel Publisher Rudolf Augstein thrown in jail for more than three months for his magazine's publishing of secret NATO documents relating to the alliance's strategy for defending Europe. In its 1966 decision on the case, Germany's high court granted journalists protection from searches whose aim is merely that of finding out who the journalist's source was.
One might think the Spiegel verdict might make Cicero an open and shut case. And indeed, Justice Wolfgang Hoffmann-Riem said during Wednesday arguments that press freedom is violated by searches that "have as their purpose the discovery of a journalist's source," seemingly indicating that he was leaning toward ruling in favor of Cicero. But despite a number of rulings designed to firm up the boundaries of press freedom in Germany, laws on the German books still make it possible to leverage journalists to reveal their sources. Which is what makes the current case so important.
Parallel to the court case, German politicians are trying to firm up press freedoms with a bill which would make it more difficult for officials to search editorial offices. The issue gained particular attention in light of an October report by "Reporters without Borders" which ranked countries according to press freedom. Germany fell five places to number 23, largely because of the Cicero affair.
The German high court is expected to hand down its verdict in the case in early 2007.