The U.S. Court of Appeals for the Fourth Circuit declined a request for rehearing by New York Times reporter James Risen on Tuesday. Of the 14 judges, 13 rejected the petition to rehear the case.
A three-judge panel had ruled in July that Risen would have to testify to the identity of his confidential source in a story involving information leaks from the Central Intelligence Agency.
Judge Roger L. Gregory, who dissented in the 2-1 July ruling, cast the single dissenting vote Tuesday in the decision denying rehearing.
“The majority [opinion] exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society,” Gregory wrote in July.
The original ruling from the U.S. District Court held that Risen was protected by a reporter’s privilege and did not have to testify.
However, the Fourth Circuit reversed, holding that “[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment or other such non-legitimate motive, even though the reporter promised confidentiality.”
In writing his dissent to the denial of rehearing on Tuesday, Gregory quoted President Kennedy, emphasizing the importance of the First Amendment and saying that no country can succeed without criticism.
He noted that there are two instances when a court will allow a case to be heard in front of the full panel of judges in a circuit, one being when the proceeding involves an issue of exceptional importance. “There can be no doubt that this issue is one of exceptional important, a fundamental First Amendment question that has not been directly addressed by the Supreme Court or our Sister Circuits,” he wrote.
“An independent press is as indispensable to liberty as is an independent judiciary. For public opinion to serve as a meaningful check on government power, the press must be free to report to the people the government’s use (or misuse) of that power. Denying reporters a privilege in the criminal context would be gravely detrimental to our great nation,” Gregory wrote.
There is no federal shield law protecting journalists, but 49 of 50 states recognize a reporter’s privilege in some form (39 states and the District of Columbia have passed shield statutes). A shield bill passed the Senate Judiciary Committee in September and is headed to the full Senate for consideration.