Will Congress step in where the U. S. Supreme Court decided not to tread?
That’s the question facing the news media and advocates of the so-called Free Flow of Information Act now that the U. S. Supreme Court in early June decided not to hear a case involving New York Times reporter James Risen. The Fourth Circuit Court of Appeals last year ruled, “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.” (U. S. v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013).) The Supreme Court’s June decision not to hear the case exposes Risen to potential jail time for not identifying a source.
Risen is the author of a book, “State of War: The Secret History of the CIA and the Bush Administration,” that detailed a CIA plan to sabotage Iran’s nuclear program. Prosecutors contend that a former CIA agent, Jeffrey Sterling, leaked information to Risen which was used in the book.
The Fourth Circuit’s decision rejects a First Amendment privilege for reporters not to testify in criminal cases, and also rejects a “qualified, federal common-law reporter’s privilege protecting confidential sources.” But the Court did recognize a qualified reporter’s privilege in civil cases, saying that the Fourth Circuit has “continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases.”
The Court rejected a privilege for Risen, holding, “he 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 by our government to protect national security, but who is charged with having endangered it instead.”
The U.S. Supreme Court’s decision not to hear the case is the latest in a number of decisions by the Supreme Court not to revisit its 1972 decision in Branzburg v. Hayes, 408 U. S. 665. For decades, many lower courts had relied upon Justice Lewis Powell’s concurring opinion in Branzburg to recognize some form of reporter’s privilege. Justice Powell’s concurring opinion stated, “The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.”
More recently, however, lower courts have taken a more restrictive view of the high court’s Branzburg holding, epitomized by the Fourth Circuit’s statement that “Justice Powell’s concurrence in Branzburg simply does not allow for the recognition of a First Amendment reporter’s privilege in a criminal proceeding which can only be overcome if the government satisfies the heavy burdens of the three-part, compelling interest test.”
With the Supreme Court’s decision not to hear the Risen case, advocates of a reporter’s privilege have turned to Congress. The Newspaper Association of America has rged Senate leadership to bring Senate Bill 987 to the Senate floor for a vote. A national coalition of media companies and associations has endorsed that effort. SB 987 was passed by the Senate Judiciary Committee, 13-5, in September but has awaited a floor vote ever since.
In the meantime, supporters of a reporter’s privilege — which in my opinion is essential to the newsgathering abilities of the press and to uncovering government misconduct — wait in uncomfortable limbo, with their protection dependent upon whether subpoenas are issued in a criminal or civil cases, or whether they are issued in a state or federal case (nearly all states have a reporter’s privilege of some sort). It’s time for Congress or the Supreme Court to end that limbo.