James Risen and the reporter’s privilege status quo

Brad Greenberg

Brad A. Greenberg is Intellectual Property Fellow at Columbia Law School's Kernochan Center for Law, Media and the Arts and is Visiting Fellow at the Yale Information Society Project. His scholarly publications can be found on SSRN; often more-trivial comments are tweeted @bradagreenberg.

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7 Responses

  1. Joe says:

    Powell’s concurrence was a weak reed. SCOTUS ever provide a clearer suggestion on the rules here?

  2. Brad Greenberg says:

    Powell’s concurrence was three paragraphs and a lot of ambiguity. Which is why the circuits have fractured on this issue so idiosyncratically. But, no, the Supreme Court has not revisited reporter’s privilege (despite a few opportunities).

  3. Brett Bellmore says:

    The spirit of the 1st amendment suggests that the government should never compel a journalist to testify where they would not compel a non-journalist to testify. Because we all, every last one of us, have the same 1st amendment rights.

    Journalists like to think they’re “the press” referred to in the 1st amendment. The reality, is that “the press” is the printing press, which we all have the right to use.

  4. Brad Greenberg says:

    Brett, you make Eugene Volokh’s point in “Freedom for the Press as an Industry, or Freedom for the Press as Technology?—and it’s one I find persuasive. However, whatever additional work the Press Clause does would still only accrue to “every last one of us” to the extent that every last one of us is doing something facilitated by the press as technology. (Or as came out in the media shield debate: those doing journalism, not just professional journalists.)

    But, even under the most exceptionally narrow definitions of the press—e.g., an investigative reporter for the most-influential legacy media organization in the world—James Risen would seem to be within the Press Clause’s ambit. So I’m not sure I get your point.

  5. Brett Bellmore says:

    “James Risen would seem to be within the Press Clause’s ambit.”

    Is the government prohibiting him from publishing something? I must have missed that. I thought they just wanted to obtain testimony from him, such as they routinely do from people who aren’t journalists, every day.

    I think there’s a tendency among journalists to confuse the right to publish, with everything which would be convenient in obtaining things to publish, like not answering questions in court.

  6. Brad Greenberg says:

    Not in this instance; I can’t speak to others. But the Speech and Press clauses are about much more than just prior restraint.

  7. Joe says:

    State press privileges here tend to be balancing tests & protecting the sanctity of the intelligence data might be seen as a pretty strong compelling reason require testimony. A federal common law privilege might follow that same route. I think – especially with nearly every state having one – a qualified privilege here makes some degree of sense. But, I would need to take a close look at the facts of the case to see if it would be warranted here specifically.