Dozens of major news media organizations joined together to defend the notion of a reporter’s privilege to protect the identity of a confidential against compulsory disclosure.
The organizations filed an amicus curiae brief in support of New York Times reporter James Risen, who has been subpoenaed to testify in the case of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to Mr. Risen. The case is currently on pre-trial appeal before the Fourth Circuit Court of Appeals.
“All amici are engaged in or support the dissemination of news and information to the public, at times through the use of confidential sources,” the amicus brief stated. “Amici are concerned that if this Court adopts the Government’s unprecedented position– that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials– their ability to report on matters of substantial public concern will be significantly impaired.”
The brief cited important news stories that were based in part on unauthorized disclosures of classified information.
“In many of these instances, although the source may arguably have violated a legal duty by providing such information to a journalist in the first instance, the subsequent reporting inevitably led to the discovery and prosecution of much more serious crimes. Amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources,” the brief stated.
The brief is an emphatic chorus of support for Mr. Risen, and it offers a clear statement that the public interest in a free press is at stake in this case.
One thing it does not do, however, is simplify the matter for the appeals court or help to devise some kind of resolution of the conflict between the parties.
Interestingly, Mr. Risen’s own brief was more accommodating. It even suggested the possibility of “bad leaks” that were undeserving of privileged protection. A case-by-case public interest analysis could be conducted to distinguish between good and bad leaks, the February 14 brief proposed.
Such an analysis “is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good.”
In this case a public interest analysis would vindicate Mr. Risen, his attorney wrote.