“Open & Shut” Summer 2011

“A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook.”

— U.S. District Judge Leonie Brinkema in a memorandum opinion dated July 29, 2011, quashing a trial subpoena of New York Times reporter James Risen in the Jeffrey Sterling espionage prosecution.

“No doubt a State possesses legitimate power to protect children from harm . . . but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

— Supreme Court Justice Antonin Scalia in the majority opinion in Brown v. Entertainment Merchants Association.

“The circumstantial evidence already before the grand jury . . . is more than enough evidence to establish probable cause to indict Sterling and the government has essentially admitted that fact. To require a reporter to violate his confidentiality agreement with his source under these facts would essentially destroy the reporter’s privilege.”

— Brinkema in her November 2010 opinion granting Risen’s motion to quash a subpoena for his testimony before the Alexandria, Va., grand jury investigating allegations that Sterling leaked classified information to Risen.

“We can’t operate in a system where everybody who posts anything on the Internet is a journalist. If everyone is a journalist, and everybody has the privilege, does anybody really believe the Legislature is going to stand for that?”

— Tom Cafferty, attorney for the New Jersey Press Association.

“The ability to imprison or involuntarily confine a citizen is an awesome power and, as such, is always at risk to be abused — with devastating results. The guaranty of open administration of justice is at the very heart of the fairness and legitimacy of judicial proceedings. The public bears witness and scrutinizes the proceedings, assuring they are fair and proper, that any deprivation of liberty is justified. Through this, citizens are guaranteed the strongest protection against unfair or unlawful confinement by the government — the protection afforded because the public is watching.”

— Justice Pro Tem. Richard Sanders in the case of In re Det. of D.F.F. The case concerned a Washington court rule that presumptively closed involuntary civil commitment proceedings to the public, but the Washington Supreme Court struck the rule down on the ground that it violated the right to the open administration of justice under the Washington Constitution.