The last few months have been momentus for journalism and media law.
The announcement in May that the Department of Justice had subpoenaed the telephone toll records of Associated Press offices and cell phones followed by the revelation of a search warrant for a Fox News reporter’s email sparked an immediate response from the news media.
And the administration heard the uproar. Attorney General Eric Holder admitted that the incidents were handled poorly, and President Obama called on Holder to report back to him by mid-July on how he would change things.
Holder seems to have taken the issue seriously. In his “Report on Review of News Media Policies,” Holder said that “the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure. The Department’s policy is to utilize such tools only as a last resort, after all reasonable alternative investigative steps have been taken, and when the information sought is essential to a successful investigation or prosecution.”
Ostensibly, this was a reiteration of existing policy. But the implimentation of federal guidelines is always in the details, as even the most broad-minded language can be useless if it is interpreted narrowly when the Department is confronted with an actual case.
And one of the first tests of how Holder will act under this new policy should come almost immediately. Soon after the report was released, the U.S. Court of Appeals in Richmond (4th Cir.) overturned a district court judge’s quashing of a subpoena to reporter James Risen in the unauthorized disclosure case against CIA officer Jeffrey Sterling.
The court was emphatic: “we hold that there is no First Amendment or federal common-law privilege that protects Risen from having to respond to the government’s subpoena and give what evidence he has of the criminal conduct at issue.” Even if there were a privilege, the court held, it would have been overcome in this case.
But the Fourth Circuit’s rejection of a privilege is not the end of the case. The court made clear that it sees nothing in the law that requires it to recognize any right of a reporter to keep a source confidential. But the Department of Justice — going back to the original adoption of the subpoena guidelines in 1970 — does recognize that reporters have an interest at stake. While Justice hasn’t gone so far as recognizing a legal privilege, it has declared: “Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.”
A coalition of media organizations led by the Reporters Committee has now joined Risen’s counsel in asking Holder to rescind the subpoena. (You can find it on our web site at www.rcfp.org/attorney-general-guidelines)
“At this stage in the case, the question before the Department is more one of policy than law, and from that perspective the court proceedings below support withdrawal of the subpoena despite the outcome in the Fourth Circuit,” the coalition wrote. The letter pointed out Holder’s promise of a subpoena as a “last resort,” and noted that the Risen subpoena was not such a case. As the federal district court judge had pointed out, there is plenty of other evidence against Sterling.
Justice is not required to do anything, since its policy concerns the approval of subpoenas before they are issued. The Risen subpoena was issued more than two years ago, and has been litigated ever since.
But if the Attorney General is serious about this new commitment to respecting the First Amendment and journalism, withdrawing this subpoena is the right thing to do.