by Matthew L. Schafer
Just days after a Department of Justice report sought to “safeguard[] the essential role of a free press in fostering government accountability and an open society,” the Fourth Circuit Court of Appeals ruled in favor of the government, forcing New York Times Reporter James Risen to testify as to his source of classified information.
“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,” Judge William Traxler, who was nominated by George H.W. Bush and elevated to the Court of Appeals by Bill Clinton, wrote for a 2-1 majority.
The case, United States v. Sterling, stems from a 2006 book that Risen published where he outlined a botched attempt by the government to feed faulty nuclear blueprints to Iran. The leak itself is over ten years old at this point.
Although the government has substantial information suggesting that Jeffery Sterling, a former CIA operative, was Risen’s source of the classified leak, the DoJ, under both the Bush and Obama administrations, has attempted to force Risen to testify. The district court has refused to force him to do so on several occasions.
“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” Judge Gregory wrote in dissent. “Reporters are ‘viewed ‘as surrogates for the public,’’ who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”
In reversing the lower court decision, the Court of Appeals focused on a 1970’s Supreme Court case, Branzburg v. Hayes, which some argue rejected the idea that a reporter has a First Amendment right to not testify as to the identity of his source (commonly called a “reporter’s privilege“).
“The Branzburg Court considered the arguments we consider today . . . and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding,” the majority wrote. “The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.”
Judge Gregory, who at oral argument expressed his concerns with forcing a reporter to testify, dissented from the majority opinion. Instead, he argued that the First Amendment required the Court of Appeals to recognize a reporter’s privilege.
“The freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” he wrote. “Reporters are ‘viewed ‘as surrogates for the public,’’” who act in the public interest by uncovering wrongdoing by business and government alike. Democracy without information about the activities of the government is hardly a democracy.”
Judge Gregory also rejected the majority’s reliance on the Branzburg case. Tracing the history of Branzburg in the lower courts, Judge Gregory argued that the opinion’s logic and a concurrence in Branzburg by Justice Powell called the usefulness of the case into doubt.
“Justice Powell’s concurrence [in Branzburg] and the subsequent appellate history have made the lessons of Branzburg about as clear as mud,” Judge Gregory wrote.
As such, Judge Gregory would have relied on the Fourth Circuit’s own case law and recognized the same reporter’s privilege in criminal cases that it had already recognized in civil cases. In such cases, the court asks “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.”
With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.
Judge Gregory quickly found that government had failed to make a showing under the first three elements, as it had collected substantial amounts of circumstantial evidence that was “no less probative than direct evidence.”
In the case of national security, like Risen’s, Judge Gregory would go beyond the original three-factor test and also inquire into “the harm caused by the public dissemination of the information[] and the newsworthiness of the information conveyed.”
As to the newsworthiness of the information Risen disclosed in his reporting, Judge Gregory found that the information was no doubt valuable to the citizenry. First, he argued that because “our nation’s focus has shifted to the nuclear capabilities of Iran,” the information is germane to current public debate.
He also found that “Risen’s investigation into the methods and capabilities of the United States foreign intelligence community with respect to the Iranian nuclear program is surely news of the highest import.”
Judge Gregory only dealt with the harm caused by Risen’s dissemination of the information in a cursory fashion, as it was not developed on the record below. While he recognized the government’s interest in protecting classified information, he also stated that “[t]he First Amendment interest in informed popular debate does not simply vanish at the invocation of the words ‘national security.’”
Judge Gregory concluded his opinion by lamenting that “the majority departs from [limited readings of] Branzburg . . . and our established precedent to announce for the first time that the First Amendment provides no protection for reporters.”
With this most recent ruling, the Fourth Circuit joins the Fifth, Sixth, Seventh, and (arguably) D.C. Circuits in rejecting a reporter’s privilege outright in criminal cases. On the other hand, in the civil context, the First, Second, Third, Fourth, Fifth, Eighth, Ninth, and D.C. Circuits have all found a reporter’s privilege.
The case will now head back to the district court where Risen will either be forced to testify or, likely, be held in contempt of court, unless the new DoJ regulations can be construed to protect Risen in a retroactive fashion.
