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Supreme Court Passes On Appeal From Journalist Threatened With Contempt Citation

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There wasn’t much excitement out of today’s first SCOTUS June decision day, three decisions handed down two of which were in patent cases. In the third case, the Court struck down the conviction of a woman under the Federal law that implements the Chemical Weapons Convention, holding that Congress did not intend the law to be applied to domestic crimes such as the one at issue in this case. The Court also announced its latest round of appeals grants and refusals, and included among those was its refusal of the appeal of New York Times reporter James Risen of an order compelling him to reveal the source of certain information in his book State Of War regarding the Iranian nuclear program:

WASHINGTON — The Supreme Court on Monday turned down an appeal from James Risen, a New York Times reporter 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 is an imperative to secure evidence in a national security prosecution and what journalists said is 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 Central Intelligence Agency 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.

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.

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.

This development comes less than a week after the Supreme Court refused to grant an appeal in a different case that invoked the issue of the journalistic privilege. In that case, a Fox News reporter was threatened with being compelled to reveal the source of certain information she had received regarding Aurora, CO movie theater shooter James Holmes. The Court’s refusal to grant the appeal let stand a ruling from New York’s highest court that ruled that the reporter did not have to testify. This refusal, of course, lets stand a ruling from the Fourth Circuit that essentially means that Risen will likely eventually face the choice of either revealing his source(s) or going to jail likeTimes reporter Judith Miller did in connection with the Valerie Plame matter.

As I’ve said before, it’s often a mistake to try to draw conclusions from the Court’s refusal  to grant an appeal beyond the rather obvious conclusion that there were not four Justices who wanted to hear the case. However, it seems apparent that the Court is reluctant to revisit its decision in Branzburg, at least with a case of this kind. If Risen’s case involved something other than intelligence matters, in fact, it’s entirely possible that the Court might have agreed to accept it and, hopefully, provide some guidance to Federal Courts who are trying to reconcile a court decision that is more than 40 years old with a legal reality in which journalist shield laws are recognized by the legislatures and courts of nearly every state in the nation.

The other obvious solution, of course, would be for Congress to act on this matter. However, while there was a proposed shield law introduced in the Senate last year and there have been some hearings on the matter since then, there has been next to no legislative action on the matter in the upper chamber, and none at all in the House of Representatives. Realistically, it is unlikely that Congress is going to act on this matter before the end of the year, meaning that the Senate bill will die and would have to be revived in the next session of Congress. However, absent some event that brings this issue into focus again, though, it seems unlikely that we’d see any real pressure on Congress to act here. Which leaves it up to the Supreme Court to step in and speak on the matter. So far, though, the Justices don’t seem willing to do so.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Jeremy R says:

    Posner:

    “The press is wrong to demand a reporter’s privilege for James Risen.”

    The source himself must be punished if he is caught. If the free flow of newsworthy information is all that matters, then CIA agents like Sterling should be allowed to disclose newsworthy information rather than being prosecuted for doing so. Yet Risen does not argue that CIA agents who disclose government secrets should go free; no one does. The law provides limited channels for whistle-blowers. They may be inadequate, but Sterling did not pursue them.

    That being the case, you might also think that reporters who publish such disclosures could themselves have acted criminally—by aiding and abetting a crime. The government has never prosecuted reporters on such a theory, however; all that it wants is for them to testify so that it can convict a leaker like Sterling, just as any other witness to a crime must testify in court. And so if we agree that the government can legitimately prosecute Sterling for disclosing information, then we ought to agree that the government can legitimately compel Risen to disclose at trial whether Sterling was his source.

    There is only one way that journalists can escape this logic: by arguing that we can trust journalists to use their judgment to make only disclosures that serve the public interest. The idea is that they’re different from their sources in a way that promises reliability: A leaker could be vengeful or anti-social or anti-American or just careless, but a reporter will be cautious and prudent and professional and patriotic. If the leaked information should remain secret, it is safe in the journalist’s hands. “Don’t trust the government,” says the press. “Trust us instead.”

    The incentives of journalists are every bit as bad as the incentives of people in government. Government officials want to conceal programs, no matter how disastrous they are; journalists want to disclose them, no matter how valuable they are. They do not get Pulitzers for patriotically declining to disclose the existence of secret programs, however useful.

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