Does James Risen need a “shield law”?

By Christopher B. Daly 

The New York Times has an editorial worth reading today about one of its reporters, James Risen, who is facing a court order to reveal his confidential source for a book that he wrote in 2006. At issue is a ruling by the 4th U.S. Circuit Court of Appeals late last week that explains the whole case. The upshot: based on the Supreme Court’s erroneous ruling in the 1972 Branzburg case, the Circuit Court said the journalist has no choice: when the government demands to know who your source was, you have to spill the beans, or go to jail (and then spill the beans, I guess, unless the government plans to jail journalists for life).

As I have argued here and here and here, SCOTUS got Branzburg wrong, so it is hardly surprising that its progeny are similarly wrong. In my view, the First Amendment, when properly understood, would provide journalists all the protection they need to protect their sources. Until that 1972 error is corrected, we will continue to see these kind of rulings, and journalists — regrettably — will have to go to jail.

Here’s the Times editorial:

A Terrible Precedent for Press Freedom

By 

An egregious appeals court ruling on Friday has dealt a major setback to press freedoms by requiring the author of a 2006 book to testify in the criminal trial of a former Central Intelligence Agency official charged with leaking classified information. The ruling and the Justice Department’s misplaced zeal in subpoenaingJames Risen, the book’s author and a reporter for The Times, carry costs for robust journalism and government accountability that should alarm all Americans.

A federal district judge, Leonie Brinkema, was mindful of those costs two years ago when she ruled that a qualified reporters’ privilege to protect confidential sources, grounded in the First Amendment, applies in criminal cases and declined to compel Mr. Risen to reveal a confidential source in the trial of Jeffrey Sterling, a former C.I.A. employee. The 2-to-1 ruling by the United States Court of Appeals for the Fourth Circuit, which overturned Judge Brinkema’s sound decision, relied on an overly sweeping reading of a murky 41-year-old Supreme Court decision that has been rejected by other federal appellate courts. The ruling also failed to respect the nearly universal consensus among states that there is a common law privilege for protection of reporters’ confidential sources.

The third member of the panel, Judge Roger Gregory, got it right, calling his colleagues decision a real threat to investigative journalism. “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,” Judge Gregory wrote in a forceful dissent. “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.” Judge Gregory found that the government has ample evidence to proceed with the prosecution without forcing a reporter to choose between protecting sources or going to jail.

The precedent set here is especially troubling since the Fourth Circuit, where the ruling applies, includes Maryland and Virginia, home to most national security agencies. If left to stand, it could significantly chill investigative reporting, especially about national security issues.

It was dismaying that the Justice Department issued a statement approving of the court’s wrongheaded legal conclusion barely a week after Attorney General Eric Holder Jr. announced new guidelines that are supposedly designed to better protect the news media from federal investigators in leak cases. But the department also said it was “examining the next steps in the prosecution of this case.” That should include withdrawing its demand that Mr. Risen testify about his sources.

This issue tests the new guidelines and their promise not to threaten journalists with jail for doing their jobs, except in “extraordinary” circumstances. If he has any intention to live up to that pledge, Mr. Holder should reopen the question of Mr. Risen’s subpoena.

4 Comments

Filed under Journalism, journalism history, Uncategorized

4 responses to “Does James Risen need a “shield law”?

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