Appeals Court Rejects Reporter’s Privilege in Leak Case

In a new ruling with ominous implications for national security reporting, an appeals court said today that there is no reporter’s privilege that would allow New York Times reporter James Risen to decline to identify the source of classified information that he revealed in his book State of War.

Mr. Risen had been subpoenaed to testify in the leak prosecution of former CIA officer Jeffrey Sterling, who is accused of leaking information to Risen about a failed CIA operation against Iran’s nuclear program.  In 2011, the lower court had ruled that Risen would not be compelled to reveal his source.  The Fourth Circuit court of appeals today reversed that ruling.

“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,” said the majority ruling, written by Chief Judge William B. Traxler Jr.

“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 reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise,” Judge Traxler wrote.

In a dissenting opinion, Circuit Judge Roger L. Gregory said the majority ruling was a fateful mistake.

“Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy — the vote — meaningless. The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.”

“I find it sad that the majority departs from… our established precedent to announce for the first time that the First Amendment provides no protection for reporters,” Judge Gregory wrote.

“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.”

“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. The First Amendment was designed to counteract the very result the majority reaches today,” Judge Gregory wrote.

There is a permanent tension, if not an irreconcilable conflict, between a free press and the operations of national security.  The tension can be managed by the exercise of prudent self-restraint on both sides.  So, for example, news organizations do not publish all secret information they acquire, and the government does not exercise its full legal authority to penalize unauthorized publication.  But the tension can also be exacerbated, as in the present case, perhaps to a breaking point.

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