The U.S. Court of Appeals in Richmond, Va. (4th Cir.) recently heard arguments in one of the most significant press freedom cases in recent years. The court will be called on to determine whether James Risen, a two-time Pulitzer Prize winning journalist for The New York Times, will be required to testify against a former CIA analyst who is being prosecuted under the Espionage Act for divulging government secrets.
The government has alleged that Jeffrey Sterling revealed top-secret information about a failed CIA operation to disrupt Iran’s nuclear program, information that Risen included in a chapter of his 2006 book “State of War.”
Last summer, federal district judge Leonie Brinkema in Alexandria, Va., ruled that the qualified reporter’s privilege under the First Amendment protected Risen from identifying his confidential source. A coalition of media groups, including The Reporters Committee for Freedom of the Press, joined a friend-of-the-court brief in support of Risen.
The government and Risen disagree on two issues: whether a qualified reporter’s privilege exists at all in the context of criminal proceedings brought in good faith and, if so, whether the facts of this case favor shielding Risen from testifying. The government has also appealed two other decisions of the district court, but they do not directly involve Risen.
The Fourth Circuit’s decision, which is likely to interpret a 1972 U.S. Supreme Court decision, could come as early as this summer.
The meaning of Branzburg
The arguments put forward by the government and Risen reflect a fundamental disagreement about the meaning of the Supreme Court’s decision in Branzburg v. Hayes. The government has argued that, under Branzburg, unless the government issues a subpoena in bad faith, a reporter is entitled to no privilege at all under the First Amendment, according to Robert Corn-Revere, a Washington, D.C.-based media lawyer.
This would mean that journalists are entitled to no greater protection from subpoena than any other person, because prosecutors may never issue subpoenas in bad faith or for the purpose of harassment, said Joel Kurtzberg, who represents Risen. The First Amendment would offer journalists no additional protection.
Branzburg was a consolidation of several cases in which reporters were subpoenaed to testify before grand juries. Paul Branzburg was a reporter who covered the “drug scene” in Frankfort, Ky., and interviewed hashish dealers and drug users and wrote about their experiences. These individuals spoke with him based on his promise of confidentiality. The other cases involved reporters, including New York Times reporter Earl Caldwell, who covered meetings by the Black Panthers. All were subpoenaed to testify before grand juries, and all were held in contempt for refusing to do so.
Writing for five members of the Court, Justice Byron White rejected the reporters’ argument that the First Amendment protected a journalist at a grand jury hearing from revealing the identity of a confidential source. “[W]e cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it,” Justice White wrote.
Four justices dissented outright, and Justice Lewis Powell concurred. And it is the meaning of Justice Powell’s brief concurrence — just three paragraphs long — over which much of the fight in Sterling/Risen is occurring.
Although joining the majority opinion, Justice Powell wrote separately “to emphasize…the limited nature of the Court’s holding.” He interpreted the holding of the court to mean that, when a reporter’s testimony is only supplementary to the investigation, or when his testimony implicates confidential sources outside the legitimate needs of investigators, the reporter can ask a court to quash the subpoena.
Risen has argued that, because Justice Powell was the fifth vote for the majority and he joined only because of his narrow understanding of the opinion, his concurrence is the controlling opinion.
Every court of appeals to address the issue in the context of a criminal trial has recognized that journalists are entitled to some measure of constitutional protection under the First Amendment, according to Kurtzberg. If the Fourth Circuit were to overturn Judge Brinkema’s decision it would be out of step with these courts, he said.
Balancing the interests
Assuming that the Fourth Circuit recognizes the existence of a constitutional or common law reporter’s privilege, they will still need to determine whether such a privilege should shield Risen from testifying in this case.
The district court applied a three-part test that the Fourth Circuit had developed in another case, LaRouche v. National Broadcasting Co. That test requires that a court, in determining whether to require disclosure by a reporter of confidential source information, to evaluate (1) whether the information is relevant; (2) whether the information can be obtained by alternative means; and (3) whether the government has a compelling interest in the information.
An important aspect of this argument, Kurtzberg said, is the amount of deference granted to Judge Brinkema’s decision. The court should apply an “abuse of discretion” standard, which would require the court of appeals to grant the district court’s decision a great degree of deference, he said.
With regard to the first question, the district court held that Risen’s testimony is clearly relevant. But a significant dispute has developed over the second question. The government has argued that, as the only witness to the alleged crime — the unauthorized disclosure of classified information — the information sought by Risen’s testimony would be unavailable from any other source. Because the crime that the government is alleging Sterling committed was telling Risen classified information, Risen’s testimony is the only direct evidence of the crime.
Both Risen and the district court thought this argument to be unavailing because the government had a great deal of circumstantial evidence, and because the government never stated whether it had other forms of direct evidence, such as copies of email messages between Risen and Sterling. According to the district court opinion, the circumstantial evidence that the government possesses includes telephone records, computer files, and the testimony of other witnesses, all of which “strongly indicates” that Sterling was the source.
There is no requirement that prosecutors provide direct evidence. “One can prove a case on circumstantial [evidence] alone,” Kurtzberg said.
The amount of circumstantial evidence in the government’s possession should obviate the need for Risen to testify, Corn-Revere said. Risen’s testimony would simply be “the icing on the cake.”
For the government to succeed, prosecutors will have to show that there are holes in their case that cannot be filled without Risen’s testimony, Kurtzberg said.
Apparently because of the potential for national security information to be addressed, other two additional rulings that the government appealed — a discovery sanction suppressing the testimony of two government witnesses, and an order requiring the true identities of some covert witnesses be given to the defense and to the jury — took place behind closed doors. But the portion of the oral argument involving Risen’s subpoena challenge was argued publicly before the Fourth Circuit.
“First and foremost, it was important to us that Jim’s hearing be open,” Kurtzberg said.