(This report was originally published at the media blog LWR.)
by Matthew L. Schafer
RICHMOND, Va. – On Friday, the Fourth Circuit Court of Appeals in Virginia heard arguments as to whether the Obama administration can force a New York Times reporter to identify his confidential source. At least one judge seemed to believe that it could not.
The case stems from a 2010 indictment against Jeffery Sterling, a former CIA operative, charging Sterling under the Espionage Act for allegedly sharing classified information with James Risen, a Pulitzer Prize-winning journalist at the New York Times.
As part of the investigation, Attorney General Eric Holder authorized a subpoena against Risen, which demanded that Risen name his source for a book chapter that contained classified information relating to Sterling.
The Obama administration’s case against Sterling suffered a setback last year in the district court, when a district judge held that requiring Risen to testify would violate Risen’s First Amendment reporter’s privilege to protect his source.
“It’s a fairly basic constitutional issue for the press: whether or not there is a reporter’s privilege,” Risen said early this month in Washington, D.C. “I think it’s something that a lot of people outside of the press don’t understand; they don’t really care about, but I think the basic issue is whether or not you can have a democracy without aggressive investigative reporting, and I don’t think you can. That’s why I’m fighting [the subpoena].”
Robert Parker, counsel for the United States, argued to the Court of Appeals that it was obligated to follow a Supreme Court ruling in the 1970’s case Branzburg v. Hayes. According to Parker, Risen’s situation was no different from the reporter’s in Branzburg.
In Branzburg, a reporter witnessed drug manufacturers making hashish, and the government subpoenaed the reporter to identify the manufacturers. The Supreme Court held that a journalist, like any citizen, must testify as to crimes he witnesses.
Parker told the court that Branzburg is “clearly” controlling, as Risen witnessed a crime: the disclosure of classified material.
Judge Albert Diaz, an Obama appointee, retorted that Branzburg’s holding actually was “clear as mud.”
Parker further argued that it made sense to find that no privilege existed in cases where the crime was the disclosure of classified information, because the public has a great interest in preventing the disclosure of state secrets.
“It’s a per se rule if [the government] raises core secrets there is no privilege at all,” Judge Roger Gregory, a Clinton appointee, stated quizzically.
Judge Gregory also suggested that witnessing a crime like drug dealing was much different from those cases where the alleged crime is the disclosure of classified information to a journalist, citing the country’s commitment to the free flow of information.
Risen’s counsel, Joel Kurtzberg, told the court that a concurring opinion in Branzburg required that the court balance the government’s need for the information against the reporter’s First Amendment interests.
“The government minimizes the significance of Justice Powell’s concurring opinion in Branzburg,” Kurtzberg said, calling the concurrence the “least common denominator.”
Under the balancing approach advocated for by Justice Powell, Kurtzberg argued that the government did not need Risen’s testimony, because the government had extensive additional evidence regarding Sterling’s relationship with Risen.
Judge Gregory and Judge Diaz were joined on the three-judge panel by the largely-silent Judge William Traxler, a Clinton appointee. A decision is expected in the coming months.