First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Friday, July 19, 2013

Court wrongly rejects reporter's privilege for James Risen

This morning, the Fourth Circuit Court of Appeals rejected James Risen's assertion of reporter's privilege.  That was the wrong decision, particularly in light of the revised media guidelines issued by the Department of Justice last week.

Risen, a New York Times reporter, argued that he should not be forced to reveal whether Jeffrey Sterling, a former CIA agent, was Risen's source for information in a book Risen authored.  Sterling is being prosecuted for revealing, in alleged violation of the Espionage Act, that the US covertly supplied Iran with faulty nuclear weapons plans.

Today's 2-1 decision from the Fourth Circuit reversed a lower court's finding that Risen did not need to testify.  The Court held that 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 relies heavily on the US Supreme Court's narrow 5-4 decision in Branzburg v. Hayes.  But, in that case the reporter witnessed people using marijuana.  Here, on the other hand, the reporter purportedly "witnessed" criminal conduct by receiving information divulged in alleged violation of the Espionage Act.

So this is the Fourth Circuit's troubling reasoning:  if a reporter received information that was allegedly disclosed in violation of the Espionage Act then the reporter is a witness to a crime because the purported crime itself is the disclosure of information.  As such, the reporter can be compelled to testify at the Government's pleasure (so long as the Government is not acting in bad faith, which is a very hard thing to show).  That is too convenient for the Government, and it is nothing like Branzburg

Today's ruling makes it nearly impossible for a reporter to ever assert any reporter's privilege in any Espionage Act case in the Fourth Circuit.  This matters a lot because the CIA and NSA headquarters are located in the Fourth Circuit and, particularly after this ruling, the Government will want to prosecute any Espionage Act case it can in the Fourth Circuit, especially if reporter witnesses will be involved.

There is another wrinkle here.  Just yesterday, Risen's lawyer sent a letter to the Fourth Circuit urging it to consider the DOJ's new guidelines for reporters issued last week.  In the letter, attorney Joel Kurtzberg argued Risen would not have been subpoenaed had the new regulations been in place earlier and it was therefore disingenuous (my word, but I think a fair reflection of the letter's sentiment) for the DOJ to press its efforts against Risen.

Less than 24 hours later, the Fourth Circuit ruled against Risen.

This decision reaffirms, yet again, the need for a federal reporter's privilege.  See my previous post on that.  Two days ago, Senators Schumer and Graham reintroduced such legislation.  Let's hope it goes somewhere.

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