Defending James Risen: Circuits Split

Many federal circuit courts offer journalists little protection from testifying in criminal trials
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Cindy Gierhart

When the Supreme Court in June denied reporter James Risen’s request for an appeal of his contempt order for refusing to name a source, it left a bleak outlook for the reporter’s privilege in criminal cases in the Fourth Circuit. Unfortunately, many of the other federal circuits do not paint a bright picture when it comes to reporters testifying in criminal cases.

While there is no federal shield law (supporters hope the latest version of such a bill will go to the Senate floor for a vote soon), most federal circuit courts have recognized some type of reporter’s privilege. A reporter’s privilege protects journalists in some instances from having to testify about their reporting or reveal their confidential sources.

That privilege varies across the circuits, with journalists generally receiving the least protection in criminal cases, thanks in part to the 1972 Supreme Court case Branzburg v. Hayes. In Branzburg, various reporters were called to testify in grand jury proceedings regarding their observation of either drug use or Black Panther activity.

The Court said the First Amendment does not protect reporters from having to testify in grand jury proceedings when the reporter is a witness to the crime being investigated.

Since 1972, circuit courts have chosen to read Branzburg either narrowly or broadly. Most courts believe Branzburg only applies to criminal cases, so they are much more willing to find a reporter’s privilege in civil cases. But the courts vary even as to how much privilege they’re willing to grant — if any — in criminal and grand jury proceedings.

Fourth Circuit finds no privilege where reporter witnesses criminal conduct

In 2006, New York Times reporter James Risen published a book, State of War, in which he revealed details of a classified CIA operation that tried and failed to have a former Russian scientist supply Iran with fake weapon blueprints. He credited the information to an anonymous source.

Jeffrey Sterling is a former CIA agent who has been criminally charged under the Espionage Act for allegedly disclosing classified information to Risen. After Sterling’s grand jury indictment and in preparation for trial, the government subpoenaed Risen to testify about who his anonymous source was.

The district court initially found that Risen did not have to testify, recognizing a reporter’s privilege. The circuit court, however, reversed this decision on appeal. By denying Risen’s petition for appeal, the Supreme Court effectively left intact the circuit court’s decision.

The circuit court ruled that there is no reporter’s privilege “in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in.” There is only one small exception, which comes straight out of Branzburg: only if the request to testify was made in bad faith, as an attempt to harass the reporter, or for some other “non-legitimate motive” will the reporter not have to testify.

Some other courts have interpreted the Branzburg ruling to apply only to grand jury proceedings and not criminal trials, but here Risen was subpoenaed to testify in Risen’s trial, after he had already been indicted. (Risen was also subpoenaed in the earlier grand jury indictment, but that subpoena expired before it could be resolved.)

Therefore, the Fourth Circuit did not take the most limiting interpretation of Branzburg, instead finding that there is essentially no reporter’s privilege in any criminal trial where the reporter is a witness.

In criminal cases prosecuting government employees for leaking classified documents, the reporter will always be a witness to the crime of disclosing documents. However, there could be some breathing room in the court’s opinion for reporters asked to testify in criminal cases in which they are not witnesses.

For example, if a journalist was asked to testify in a murder trial about who disclosed a confidential police report (as was recently the case in Illinois for reporter Joe Hosey), the journalist is not a witness to the murder. If a law enforcement officer were charged with a crime regarding the disclosure of the police report, then perhaps the reporter could be forced to testify in the officer’s grand jury proceedings. But at the murder trial, the journalist would not be a witness to the crime of murder, and there is at least an argument that a reporter’s privilege would apply in that case in the Fourth Circuit.

There is also some breathing room in how a future court might interpret that small exception that a journalist will be protected, even in criminal cases, when the subpoena was issued in bad faith or for the purpose of harassment.

Justice Powell in his concurring opinion in Branzburg defined harassment as being “called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if . . . his testimony implicates confidential source relationships without a legitimate need of law enforcement.”

The Fourth Circuit did not explicitly adopt this as its test for harassment, but it did seem to endorse it by applying it to Risen. The court found that Risen was not being harassed with a subpoena because the information he holds is not tenuous or remote but rather central to the case. He is the only witness who can offer direct evidence in Sterling’s case, the court wrote.

Therefore, in criminal cases going forward, the argument could be made that courts in the Fourth Circuit must review whether prosecutors have a “legitimate need” for the information and whether the journalist’s information has more than a “remote and tenuous relationship to the subject of the investigation” before enforcing subpoenas against journalists.

No better in the Fifth or Seventh Circuits

The Fourth Circuit is not alone in showing its hesitancy to shield reporters from testifying in criminal trials. The Fifth and Seventh Circuits do not distinguish between grand jury investigations and other criminal proceedings when determining whether to force a journalist to testify, which means they tend to apply the more restrictive view from Branzburg to all criminal proceedings.

Fifth Circuit: The Fifth Circuit is not particularly favorable to reporters testifying in criminal cases. In the 1998 case United States v. Smith, the court wrote, “Branzburg will protect the press if the government attempts to harass it. Short of such harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen.”

That statement would not bode well for Risen, were he in the Fifth Circuit. Even if harassment is interpreted to mean the information is “remote and tenuous” or does not serve a “legitimate need,” the Fourth Circuit already found that Risen was not being “harassed” according to this definition.

Seventh Circuit: The Seventh Circuit paints the bleakest picture for reporter’s privilege of any of the circuits. Most of the circuit courts recognize some kind of reporter’s privilege in civil contexts, but the Seventh Circuit is skeptical that any privilege exists for journalists in any context. The cases where the court has decided this have involved non-confidential sources, which means a future court could find a privilege to protect confidential sources. But at the moment, that future is uncertain.

Risen certainly would not have found better protection in the Seventh Circuit than in the Fourth.

Stronger protections

In no circuit would Risen have been easily assured protection from testifying. However, in circuits that treat grand jury proceedings differently from other criminal trials, there tends to be greater protections — though slight — for non-grand jury proceedings.

First and Second Circuits: In non-grand jury criminal cases, the test is somewhat undefined in the First Circuit, but there seems to be some leeway for journalists. In In re Special Proceedings, the First Circuit looked at whether the information was “highly relevant to a good faith criminal investigation” and whether “reasonable efforts were made to obtain the information elsewhere.”

The Second Circuit also places grand jury proceedings on a higher tier than other criminal proceedings, though a “grand jury” test is not clearly articulated.

In the Second Circuit, the test for journalists in non-grand jury criminal trials is better than in most circuits: Before a journalist is required to divulge confidential information — in a civil or criminal case — the subpoenaing party must make “a clear and specific showing that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources.” This rule, also articulated in the dissent in the Branzburg case, applies in the circuit through United States v. Burke, a 1983 case.

Risen might have actually found protection under either of these standards. The government has collected a substantial amount of evidence indicating that Sterling was Risen’s source, including records of phone calls and emails sent between the two. Many argue that Risen’s testimony is not at all necessary to Sterling’s trial and might therefore fail both circuits’ requirements that the information be highly relevant and not available from other sources. There would also be an argument in the Second Circuit that Risen’s testimony is not necessary or critical to convict Sterling.

Third and Ninth Circuits: The Third and Ninth Circuits conduct a balancing test to determine whether a journalist will be forced to testify in a criminal proceeding. The judge will weigh the First Amendment newsgathering interests of journalists against the need for relevant evidence of criminal conduct to be given at trial.

That is an obviously broad standard with considerable discretion left to the judge. Whether a journalist will be forced to testify will likely rely heavily on the facts of the case and the particular court’s prior decisions regarding reporter’s privilege.

Therefore, it is hard to say whether Risen would have been protected under this standard. Given that the need for the information is arguable low, because the government has collected a significant amount of circumstantial evidence against Sterling, it is certainly plausible a judge would have protected Risen under this standard.

D.C. Circuit: The standard is not well defined in D.C. for criminal cases not involving grand juries, but at least one case, United States v. Ahn, upheld a reporter’s privilege when the journalists’ testimony was “not essential or crucial” to the case and not relevant to determining the defendant’s guilt or innocence.

If the test is based solely on relevancy, Risen likely would not be protected because his testimony is certainly relevant to Sterling’s trial. But if the test looks at whether the information is “essential or crucial” to the case, then Risen would have a very good argument for being protected.

An unclear standard elsewhere

A few circuits have never articulated a standard for protecting journalists in criminal proceedings, which would leave Risen’s fate unclear, were he to appear in these courts.

Sixth Circuit: In a grand jury proceeding, a reporter will be forced to testify unless the reporter is being harassed, the investigation is conducted in bad faith, the information is remote or tenuous to the case, or there is no legitimate law enforcement need for the information, according to the court in Storer Communications, Inc. v. Giovan.

It is not clear in the Sixth Circuit whether criminal trials outside of grand jury proceedings would be held to the same standard.

Eighth Circuit: At the appellate level, no standard has been articulated. However, a district court in Arkansas has rejected a reporter’s privilege in criminal cases.

Tenth Circuit: The Tenth Circuit also has not defined the standard at the appellate level for criminal cases, but the District Court in Kansas held that the same standard should apply in civil and criminal cases. Under the civil standard, the court will look at whether (1) the information can be obtained elsewhere, (2) “the information goes to the heart of the matter,” (3) “the information is of certain relevance,” and (4) “the type of controversy.”

However, that precedent is limited to Kansas, and a circuit court might very well decide differently.