Supreme Court to Weigh Case on Reporters' Rights
In a case involving a Pulitzer Prize winner, justices may reconsider a journalist's right to keep sources secret.
New York Times reporter James Risen is asking the U.S. Supreme Court to spare him from having to testify about a source.
By Steven Nelson
May 27, 2014
Supreme Court justices will discuss Thursday whether to hear an appeal from James Risen, a Pulitzer Prize-winning New York Times reporter facing possible jail time for refusing to identify a confidential source.
Risen’s attorneys are asking the court to decide if journalists have a First Amendment privilege to refuse to testify about sources during a criminal trial. They’re also asking justices to consider extending a federal common law privilege – not a constitutional right – to protect journalists in such situations.
The court’s decision to accept or reject the case may be announced as early as Monday.
Risen is fighting a May 2011 subpoena requiring him to testify in a criminal trial against Jeffrey Sterling, a former Central Intelligence Agency employee whom federal prosecutors say supplied a shocking scoop for Risen’s 2006 book “State of War: The Secret History of the CIA and the Bush Administration.”
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According to prosecutors, Sterling told Risen about a terribly mismanaged CIA scheme to supply Iran with inaccurate nuclear weapon blueprints in an effort to derail the country’s nuclear program. The plan fell apart, Risen wrote, after the Russian scientist who delivered the plans noticed the design flaws and tipped off the Iranians.
The legal fight has been unfolding for years. Risen was subpoenaed to testify before a grand jury against Sterling in January 2008, but contested the subpoena and a federal judge agreed his testimony would be unnecessary “icing on the cake.” Sterling was indicted on 10 counts in December 2010 without the reporter’s testimony.
Risen’s fight against testifying at trial was less successful, with the U.S. Court of Appeals for the Fourth Circuit rejecting his arguments in July 2013.
“I think if they take the case it’s going to be to clarify the law in a positive way,” says Chuck Tobin, chairman of the law firm Holland & Knight's national media practice team. “The Fourth Circuit really went against the grain.”
Tobin has represented nearly a dozen reporters struggling against state and federal subpoenas and sees the Risen case as a possible breakthrough.
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“The underlying facts are a really bad job of protecting national security that our government did, in a case where they really don’t need Risen to prosecute the person they’re going after,” he says. “It’s a very bad set of facts for the government to be testing privilege and a good case for the importance of First Amendment protection.”
Risen’s attorneys recognize that it’s rare for the court to accept a case, but feel they present a strong argument for either a constitutional or common law privilege for reporters.
The Supreme Court previously considered whether journalists have a right to privileged communication with sources more than four decades ago, deciding that reporters who wrote about drugs and the Black Panthers could not quash grand jury subpoenas.
“[W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it,” the court’s majority ruled in a 5-4 decision in Branzburg v. Hayes. Justice Lewis Franklin Powell sided with the majority, but wrote a concurring opinion intending to restrain the decision.
In his dissent, Justice Potter Stewart fumed that the 1972 ruling “invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government.” But, in a footnote, he expressed hope that “[t]he disclaimers in Mr. Justice Powell's concurring opinion leave room for the hope that, in some future case, the Court may take a less absolute position in this area.”