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First Amendment advocates continue to call for a federal shield law in the wake of the Fourth Circuit appeals court's ruling last week that New York Times reporter James Risen must identify a source—a decision that some say could have gone the other way if Congress had enacted a nationwide reporter’s privilege.
“I do think it would have come out quite differently if we had a statute,” said Kurt Wimmer, a Washington, D.C. media lawyer who has consulted with House and Senate staff members on draft bills as counsel to the Newspaper Association of America.
Both houses are now considering bills that would provide a national reporter's privilege while carving out an exception to let the federal government subpoena journalists in order to prevent a national security threat. Under such a law, Wimmer said, the government probably would not be able to force Risen to testify in the trial of former C.I.A. agent Jeffrey Sterling, the suspected leaker of information in Risen’s book "State of War."
“The way the national security exception is written in the Senate, you can only use that exception if the information that you’re getting at is intended to prevent a future act of terrorism or a national security incident,” he said. “Identifying a leaker of something that was published years ago, I don’t think could credibly be seen as preventing a new national security incident.”
If the court had found that the national security exception did not apply, Wimmer said, it then would have had to balance the government’s interest in identifying Risen’s source against the public interest in access to information.
But Sonny Albarado, the president of the Society of Professional Journalists and a supporter of federal shield legislation, said he doubted that a shield law would have protected Risen.
“Frankly, I don’t think it would have changed much, because this is a national security case using the Espionage Act, and the climate generally in the courts is that national security trumps any free speech or First Amendment claims,” he said.
Although there is no guarantee that Risen could have taken advantage of a federal shield law, Congress should pass one to establish that the reporter's privilege exists in federal court, said Sophia Cope, a government affairs expert with NAA.
“This decision shows that there continues to be a large difference between the jurisprudence of the various circuits across the country,” she said. “We really need one federal statute to set forth clear and consistent rules across all federal jurisdictions.”
Los Angeles-based media lawyer Jean-Paul Jassy agreed, adding that Congress should use shield legislation to clarify a point of constitutional law.
“The reporter’s privilege derives from the First Amendment, and the First Amendment should offer that protection nationwide,” he said.
Risen’s lawyer made the argument for a First Amendment reporter’s privilege, and the district court agreed, dismissing the subpoena in a 2011 ruling. But the Court of Appeals reversed that decision, citing Branzburg v. Hayes, the 1972 case in which the Supreme Court held that the First Amendment did not grant journalists a special privilege to avoid testifying.
If Congress were to pass a shield law, “it would at least force the court to consider the issues instead of relying on Branzburg v. Hayes and finding that that decision precluded any protection for Risen,” Indiana University journalism professor Anthony Fargo said.
Toni Locy, a journalism professor at Washington and Lee University in Virginia and former USA Today reporter who was held in contempt of court in 2008 after refusing to identify sources, called the appeals court’s ruling “disappointing” and “scary.”
“The Fourth Circuit’s decision allows the government to hide abuse of power and incompetence,” she said. “In other words, the government can do no wrong in the court’s eyes, and reporters and their sources are in grave danger if they dare question how government officials behave.”
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