Federal appellate court hears arguments in reporter's privilege case

A federal appellate court heard arguments today in a case that may potentially be one of the most significant rulings on a reporter's privilege to refuse to disclose the identity of confidential sources and other information obtained during the newsgathering process.

The U.S. Court of Appeals in Richmond, Va. (4th Cir.), is considering an appeal in the Espionage Act prosecution of former CIA analyst Jeffrey Sterling and the related subpoena of New York Times reporter James Risen.

As it has maintained throughout the case, U.S. Department of Justice lawyers argued that reporters do not have a qualified privilege in the context of criminal proceedings brought in good faith — an assertion that is inconsistent with the holdings of other federal appellate courts, Risen’s attorney, Joel Kurtzberg said.

“What’s at stake is the ability to gather important news and the ability for reporters like [Risen] to do their job and the public right to get news on stories of public concern,” he said.

Risen has faced three subpoenas in three years and has successfully invoked the First Amendment-based reporter’s privilege to refuse to testify at both the grand jury and trial stages of the federal prosecution.

“It’s so significant because in order for reporters like Jim Risen to do their jobs reporting on significant matters like National Security, they need to be able to promise confidentiality to sources and to be able to follow through with that promise,” Kurtzberg said.

The Department of Justice filed an unopposed motion in April to close to the public parts of the oral argument in which classified matters were to be discussed. According to the motion, the parties agreed that some parts of the argument should be sealed.

An official from the court clerk's office said the hearing began in an opened courtroom, and then after a recess the hearing continued in a closed courtroom.

The appeal involves three issues.The first issue, which was addressed in an open courtroom, is whether Risen has a constitutional or common law privilege protecting him from testifying.

The two other issues deal with the trial court's decision to allow two government witnesses to testify because of a discovery violation, and the court’s requirement that the government disclose the identities of witnesses to the defendant and the jury. These issues were argued in a sealed courtroom.

Kurtzberg said the judges asked "thoughtful, proven questions on both sides."

The government subpoenaed Risen in 2008 to identify the confidential source cited in a chapter of his book titled "State of War.” His source, whom the government alleges is Sterling, revealed information about an unsuccessful attempt by the CIA to infiltrate Iran's nuclear program.

A judge previously found that Risen’s need to protect his source outweighed the government’s need to establish its case.

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: The lack of a federal shield law

· The First Amendment Handbook: Introduction — Legislative protection of news sources — The constitutional privilege and its limits