NYT: Press Freedom Infringed
Supreme Court Rejects Appeal From Times Reporter Over Refusal to Identify Source
The Supreme Court on Monday turned down an appeal from James Risen, a reporter for The New York Times facing jail for refusing to identify a confidential source.
The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said was an imperative to secure evidence in a national security prosecution and what journalists said was an intolerable infringement of press freedom.
The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book, “State of War.” Prosecutors say they need Mr. Risen’s testimony to prove that the source was Jeffrey Sterling, a former C.I.A. official.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Mr. Risen to comply with the subpoena. Mr. Risen has said he will refuse.
“I will continue to fight,” Mr. Risen said Monday.
His lawyer, Joel Kurtzberg, urged the Justice Department to hold its fire.
“The ball is now in the government’s court,” Mr. Kurtzberg said in an email. “The government can choose not to pursue Mr. Risen’s testimony if it wants to. We can only hope now that the government will not seek to have him held in contempt for doing nothing more than reporting the news and keeping his promises” to his sources.
The Obama administration has sent mixed signals in the case and on the subject of press freedom in general. In its Supreme Court brief in the case, Risen v. United States, No. 13-1009, it told the justices that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”
But Attorney General Eric H. Holder Jr. hinted last week that the Justice Department might choose not to ask the trial judge to jail Mr. Risen for contempt should he refuse to testify.
The Obama administration has pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined.
At the same time, the administration has supported efforts in Congress to create a federal shield law that would allow judges to quash some subpoenas to journalists. The Justice Department has also issued new internal regulations limiting the circumstances in which prosecutors can subpoena reporters’ testimony and records.
Asked about the Justice Department’s plans on Monday, Brian Fallon, a spokesman, would say only that “we are considering the next steps in this case.”
Dean Baquet, executive editor of The Times, said the Supreme Court’s decision not to hear Mr. Risen’s case was disappointing.
“Jim Risen is a groundbreaking national security reporter who continues to do powerful work,” Mr. Baquet said. “Journalists like Jim depend on confidential sources to get information the public needs to know. The court’s failure to protect journalists’ right to protect their sources is deeply troubling.”
The Supreme Court has not directly addressed whether journalists have protections from subpoenas since its 1972 ruling in Branzburg v. Hayes. In that 5-to-4 decision, the court ruled that the First Amendment provided no such protection against grand jury subpoenas.
Justice Lewis F. Powell Jr. joined the majority but also wrote a short, cryptic concurrence calling on judges to strike the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.”
For decades, press lawyers had considerable success in persuading courts to interpret the concurrence broadly. That run of victories started to wane in 2003, when Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago, surveyed the legal landscape.
“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” he wrote.
A coalition of news organizations, which included The Times, filed a supporting brief urging the Supreme Court to hear Mr. Risen’s case to bring clarity to what it said was a confusing legal landscape in which the scope of press protections varied in different parts of the country, and in state and federal courthouses in the same city. All concerned, the brief said, “would benefit from this court addressing these fundamental issues about the protections available to a free press in a democracy.”
The case against Mr. Sterling concerns Operation Merlin, a C.I.A. plan to sabotage Iranian nuclear research by having a Russian scientist sell flawed blueprints to Iran. A chapter of Mr. Risen’s book described the operation.
In 2011, Judge Leonie M. Brinkema largely quashed the subpoena to Mr. Risen. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote, adding that prosecutors could prove their case against Mr. Sterling without Mr. Risen’s testimony.
A divided three-judge panel of the Fourth Circuit reversed, relying on the Supreme Court’s Branzburg decision.
“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” Judge William B. Traxler Jr. wrote for the majority.
In dissent, Judge Roger Gregory said that “the First Amendment was designed to counteract the very result the majority reaches today.”
“The majority exalts the interests of the government,” he wrote, “while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”