Reporter’s Privilege at Issue in Sterling Leak Case
The question of whether a reporter is entitled to protect confidential sources has emerged as a central issue in the pending pre-trial appeal in prosecution of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to New York Times reporter James Risen.
“There is no ‘reporter’s privilege’ applicable to criminal prosecutions brought in good faith,” prosecutors told the appeals court last month. “The First Amendment creates no ‘reporter’s privilege’ that would shield Risen from his obligation to testify at Sterling’s criminal trial and identify his source.” (“Testimony of Reporter Sought in Sterling Leak Case,” Secrecy News, January 17).
That’s not true, countered Mr. Risen’s attorneys in a lengthy response filed yesterday, and the court should not rule otherwise.
“This Court should not depart from well-established precedent by being the first court of appeals ever to deny the existence of a reporter’s privilege with respect to confidential source information in the criminal trial context…. Confidentiality is essential for journalists to sustain their relationships with sources and to obtain sensitive information from them. Without it, the press cannot effectively serve the public by keeping it informed.”
Mr. Risen’s attorneys proposed that the Court embrace a balancing test that recognizes both the benefits and risks of leaks.
“We respectfully submit that leak cases should also include a weighing of the competing interests as they manifest themselves in the case at hand — that is, by ‘weigh[ing] the public interest in compelling disclosure [of a source], measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value’.”
“Put simply, incorporating this public interest 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.”
“Applying this approach to the facts of this case, it is clear that the newsworthiness of the information contained in Chapter 9 of [Mr. Risen’s book] State of War outweighs any alleged harm that was caused by its publication,” Mr. Risen’s attorneys wrote.
A response to the government’s appeal was also filed yesterday by Mr. Sterling, but it has not yet been publicly released. See Politico for related coverage.
The case has been tentatively scheduled for oral argument during the May 15-18 session of the Fourth Circuit Court of Appeals.
As the United States continues nuclear modernization on all legs of its nuclear triad through the creation of new variants of warheads, missiles, and delivery platforms, examining the effects of nuclear weapons production on the public is ever more pressing.
“The first rule of government transformation is: there are a lot of rules. And there should be-ish. But we don’t need to wait for permission to rewrite them. Let’s go fix and build some things and show how it’s done.”
To better understand what might drive the way we live, learn, and work in 2050, we’re asking the community to share their expertise and thoughts about how key factors like research and development infrastructure and automation will shape the trajectory of the ecosystem.
Recognizing the power of the national transportation infrastructure expert community and its distributed expertise, ARPA-I took a different route that would instead bring the full collective brainpower to bear around appropriately ambitious ideas.