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Fourth Circuit deals blow to First Amendment in Risen decision

    There is a natural tension between the press and the American government that has always existed. But in…



On July 19, a federal appeals court declared that journalists do not enjoy a privileged status that protected them from testifying in court.

In its decision, the Fourth Circuit overturned a federal district court’s ruling and ordered New York Times reporter James Risen to testify about his confidential source — believed to be former CIA officer Jeffrey Sterling, who the government believes violated the Espionage Act when he allegedly talked to Risen about classified material.

Before the month ended, a military judge found a 25-year-old Army private guilty of multiple counts of violating the Espionage Act for sharing military secrets on the antisecrecy website WikiLeaks. However, Army Pfc. Bradley Manning was acquitted of aiding the enemy — an even more grievous charge that also carried serious implications for journalists.

All this came soon after the news broke this spring that federal investigators — armed with a court-sanctioned order — secretly collected telephone records of The Associated Press as well as the e-mail messages of a Fox News reporter in their hunt for leakers. Investigators labeled Fox News reporter James Rosen a “co-conspirator” so they could acquire the warrants needed to search his e-mail in their hunt for accused leaker State Department analyst Stephen Kim.


James Risen

And in between the court rulings and the news of the subpoenas, Attorney General Eric Holder was holding meetings with media lawyers and news organizations including the Reporters Committee for Freedom of the Press. Holder, ordered by President Barack Obama to look into its policies on the handling of media subpoenas, produced a set of recommendations to overhaul the Justice Department’s guidelines for seeking journalists’ notes and records.

“I think the pressures and tensions are increasing at every level,” said Jay Rosen, journalism professor at New York University and author of “The pressure on leakers and the journalists who deal with them, the momentum for a shield law, the stakes for the surveillance state, the importance of national security reporters, the stakes for the portion of the public that wants to know what it’s government is doing — all are on the rise.”

A handful of senators amended the latest version of the Free Flow of Information Act of 2013 which incorporated Holder’s recommendations. The Act was in its latest reincarnation but bolstered this time by a bit of public outrage and the support of both Holder and President Obama’s administration.

But even with all the shuffling about by the different parties involved, the U.S. Court of Appeals in Richmond, Va. (4th Cir.) ruling on Rosen between the Justice Department and the press.

Even though a federal district judge ordered in 2011 that Risen was protected by the reporters privilege, the higher court in July disagreed.

“There 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 to his source,” the Fourth Circuit stated in the 118-page opinion.

The decision overturned the court order of U.S. District Judge Leonie Brinkema in Alexandria, Va., that Risen was indeed protected by the reporter’s privilege and would not have to testify in the trial of former CIA official Jeffrey Sterling, who is charged with violating the Espionage Act.

Judge Roger Gregory, one of three judges on the Court of Appeals decision, disagreed with his two other colleagues and said that their decision to compel a reporter to reveal his sources was “contrary to the will and wisdom of our Founders.”

“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” wrote Gregory. “The majority 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.”

The Fourth Circuit ruling

In a 2-1 vote, the Fourth Circuit said it believed Risen’s testimony was essential to prosecuting Sterling and that journalists were not exempt from testifying in criminal proceedings.

In its opinion, the Court cited the landmark 1972 Branzburg v. Hayes case, in which the Supreme Court ruled that journalists did not have any special status that exempted them from giving testimony before a court.

“The First Amendment claim in Branzburg was grounded in the same argument offered by Risen — that the absence of such a qualified privilege would chill the future newsgathering abilities of the press, to the detriment of the free flow of information to the public,” according to the opinion.

“So long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

According to the court, the government had no other recourse but to seek Risen’s testimony and his confirmation that it was indeed Sterling who leaked him classified information about a failed operation to disable Iran’s nuclear program that was published in the two-time Pulitzer Prize winner’s 2006 book “State of War.”

“Indeed, (Risen) can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury — the illegal disclosure of classified, national security information by one who was entrusted to protect national security, but who is charged with having endangered it instead,” the opinion stated. “The subpoena for Risen’s testimony was not issued in bad faith or for the purposes of harassment . . . Rather, the government seeks to compel evidence that Risen alone possesses — evidence that goes to the heart of the prosecution.”

The next step

Risen’s lawyers have asked the Justice Department to drop its subpoena against the reporter based on Holder’s recommendations to President Obama. Holder said that subpoenas against the press must be treated as an “extraordinary measure” that should be used “as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a success investigation or prosecution.”

“We urge you to apply those principles to this case,” Risen’s lawyer, David N. Kelley, wrote in his letter. “In particular, we urge that the ‘last resort’ and ‘essentiality’ requirements of the DOJ’s new Guidelines cannot possibly be said to have been met in this case.”

“One thing is clear. Reporters are invariably the ‘only eyewitness’ to the ‘crime’ of speaking with them. If the DOJ takes this approach, the new Guidelines will be a quickly forgotten promise.”

Some media watchers say there may be a perfect blend right now of high public interest in the fates of whistleblowers Manning and Snowden, and the renewed fight for a federal shield law to propel a challenge to Branzburg in the Supreme Court using Risen’s case.

Rosen said it’s hard to predict what will happen.

“But the logic is there for a review by the Supreme Court,” the media critic said. “I think that’s all we can say.”

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