Supreme Court will not hear Risen's appeal over subpoena in Sterling prosecution

Cindy Gierhart | Reporter's Privilege | News | June 2, 2014

The U.S. Supreme Court announced Monday it will not hear an appeal by New York Times reporter James Risen, who has been subpoenaed to testify in a government leaks prosecution.

Risen could now face jail or fines if he refuses to testify.

Joel Kurtzberg, Risen’s attorney, said the ball is now in the government’s court. Risen was never held in contempt because the trial court initially ruled that he was protected by the reporter’s privilege and did not have to testify. An appellate court later reversed, and that decision now stands.

Therefore, the government will have to pursue Risen’s testimony again in trial court, Kurtzberg said.

“If they say they are going to do that, we will make clear that [Risen] is not going to testify and then there would have to be a contempt hearing,” Kurtzberg said.

Attorney General Eric Holder recently told media representatives in a private meeting that, as long as he is attorney general, no reporter will go to jail for doing his or her job. However, that leaves open a number of possibilities in Risen’s case.

First, a journalist – or anybody – who refuses a court order could be fined or jailed, or both. So Risen could still be fined, even if he is not jailed, and fines can be steep. When USA Today reporter Toni Locy was held in contempt for refusing to identify her confidential sources in 2008, a judge ordered that she pay $500 a day for the first week, $1,000 a day for the second week, and $5,000 a day for the third week.

Second, it is unclear whether the Justice Department considers refusing to disclose the identity of a confidential source in a classified leaks investigation as part of a journalist’s job. If not, then the statement about jailing journalists might not apply to Risen at all.

The Justice Department is seeking testimony from Risen, a New York Times reporter, about the identify of an anonymous source for Risen’s 2006 book about the CIA. Jeffrey Sterling, a former CIA officer, was separately identified as the source and charged under the Espionage Act for disclosing confidential information.

A federal trial court in Virginia found that Risen was protected by a reporter’s privilege, which the appellate court later reversed. While there is no federal shield law protecting journalists in federal courts, several of the federal circuits recognize a common law privilege.

By denying Risen’s cert petition, the Supreme Court lets stand the decision from the Fourth Circuit, which suggests there is little to no protection for journalists who are asked to testify in criminal cases.

This precedent is especially disconcerting for journalists because the Fourth Circuit includes Virginia and Maryland, which are home to both the National Security Agency and CIA. If the government continues to prosecute leaks, it is likely the Fourth Circuit would be the epicenter of those cases.

Media organizations stress that the Risen subpoena is further proof that a federal shield law is needed. A shield bill passed the Senate Judiciary Committee in September 2013 and is expected to go to a full vote of the Senate soon.

“I would hope that if . . . [Risen] is held in contempt that it provides some impetus to pass the shield law, which is desperately needed,” Kurtzberg said. “It just illustrates how desperately it is needed.”

Related Reporters Committee resources:

· NM&L: A shield advances