Supreme Court refuses to take reporter’s case on revealing confidential source

The Supreme Court declined Monday to intervene on behalf of a New York Times reporter who has been subpoenaed and could face jail time for not identifying a confidential source.

The court turned down requests from reporter James Risen and a host of media organizations, including The Washington Post, that it overturn a lower court’s order and find that reporters are protected by the Constitution from testifying about their sources. The justices offered no reason for turning down the case.

Federal prosecutors want Risen to testify in the case of Jeffrey A. Sterling, a former CIA analyst who they believe gave Risen information for his book “State of War: The Secret History of the CIA and the Bush Administration.” In that 2006 book, Risen detailed classified information about the CIA’s efforts to disrupt Iran’s nuclear program.

A district judge said Risen did not have to testify. But a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond later disagreed in a 2 to 1 decision. The majority said that under Supreme Court precedent, the First Amendment does not protect reporters from revealing who supplied them with unauthorized leaks.

Risen, a two-time Pulitzer Prize-winning reporter, has said he will go to prison rather than testify about his sources. “I will continue to fight,” Risen wrote in an e-mail to The Post on Monday.


New York Times reporter James Risen detailed classified information about the CIA’s efforts to disrupt Iran’s nuclear program in his book “State of War: The Secret History of the CIA and the Bush Administration.” (Columbia University/via AP)

In response to the Supreme Court action, the Reporters Committee for Freedom of the Press said it was “extremely disappointed” and called journalists’ ability to protect confidential sources “an essential tool utilized by a free press in newsgathering for the public trust.”

“The lower court’s ruling sends an undeniable chill through current and future news sources who would want to come forward with information essential to the well-being of the community and the country,” Bruce D. Brown, executive director of the reporters committee, said in the group’s statement.

The case will head back to federal district court in Alexandria — a process that should take about 30 days, said Edward B. MacMahon, Sterling’s defense attorney. There the judge will set a trial date and put the case back on the track from which it was derailed years ago, MacMahon said.

“We were prepared to try it before, and we’ll try it again,” MacMahon said.

Joel Kurtzberg, Risen’s attorney, said he and Risen were “disappointed that the court decided not to take our case.”

“Right now, I think that the ball is in the government’s court,” he said. “I think the government can proceed in the Sterling trial without Jim’s testimony if it decides to do so, and I hope that they don’t seek to find him in contempt for protecting his sources and doing his job.”

Kurtzberg said that if a judge were to find Risen in contempt, “it would be up to the court to determine what the consequences of contempt would be, and they could include fines instead of jail time.” He said Risen would not testify in the case.

Justice Department spokesman Brian Fallon said the department is “considering the next steps in the case” in response to the Supreme Court’s action.

U.S. Attorney General Eric H. Holder Jr. indicated last week at a meeting with journalists that prison for Risen would be unlikely.

“As long as I’m attorney general, no reporter will go to jail for doing his job,” Holder told those in attendance.

The department said that Holder wasn’t speaking about any particular case but was reiterating a position he has long held. But his statement suggests that Risen won’t face time in prison if he continues to withhold the name of his sources, as he has vowed to do, when the case goes back to the lower court.

The implications of Holder’s statement raise questions about future Justice Department policy beyond the Risen case because although Holder has decided to stay in his job through the fall midterm elections, he will not commit beyond the end of this year.

If Holder steps down in December, Deputy Attorney General James M. Cole could become acting attorney general, at least temporarily. At a meeting last week with reporters who cover the Justice Department, Cole was asked why the department would issue subpoenas to reporters if there is no intent to follow through with prosecution and potential jail time.

“Just because you issue a subpoena doesn’t mean you’re jailing anybody,” Cole said. “Sometimes people provide information. So, it’s the legal process, and we go through the legal process.”

New York Times reporter Matt Apuzzo then asked Cole if a reporter protecting a source was considered a reporter “doing his job.” Cole declined to comment.

The Supreme Court’s refusal to hear Risen’s case gives the Fourth Circuit the final word on the matter. Writing for the majority, Circuit Judge William Byrd Traxler Jr. wrote, “Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.”

But Circuit Judge Roger Gregory disagreed. “Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”

Gregory disputed the notion that the government needed Risen’s testimony to identify Sterling as his source, saying that prosecutors have a number of e-mails and records of phone calls that are incriminating.

The Supreme Court’s precedent on whether journalists have First Amendment protections from subpoenas stems from a case decided more than 40 years ago, Branzburg v. Hayes. In that 1972 decision, the court ruled 5 to 4 that there was no constitutional protection.

But ever since, the lesson of the decision has been clouded by a concurring opinion from Justice Lewis F. Powell, a member of the majority. He wrote separately to emphasize “the limited nature of the court’s holding.”

Powell said courts should employ a balancing test and decide the applicability of the reporter’s privilege on a case-by-case basis — striking a proper balance “between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

Lower courts have interpreted the ruling in different ways.

Brown, of the Reporters Committee, said his group “hopes that today’s Court inaction will lead to a robust federal shield law.” A federal shield law, which would prohibit the Justice Department from forcing journalists to give up confidential sources, passed the House on Friday as an amendment to an appropriations bill.

Matt Zapotosky and Mark Berman contributed to this report.

Sari Horwitz covers the Justice Department and criminal justice issues nationwide for The Washington Post, where she has been a reporter for 30 years. Follow her @SariHorwitz.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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