James Risen and the reporter’s privilege status quo

Many thanks to Danielle, Frank, and the Concurring Opinions crew for inviting me to guest blog this month. As Danielle mentioned, I’m primarily an IP and media law guy, and I anticipate blogging about things like Aereo, trolls, and the future of newsgathering. (Like Harry, I can be found commenting on lots of other things @bradagreenberg.) I start today with a reporter’s ability to protect the identity of confidential sources…

This week the Supreme Court denied the petition of New York Times investigative reporter James Risen. For years, Risen has fought government efforts to compel disclosure of whether a former CIA official was Risen’s source for a story about a botched CIA plot to infiltrate Iran’s nuclear agency. Risen included this confidential information in his 2006 best-selling book State of War. The former CIA official is being prosecuted for leaking to Risen, and, last July, the Fourth Circuit ruled that Risen must testify at the trial. In a last gasp, Risen petitioned the Supreme Court, asking whether  journalists in a federal criminal trial have a qualified constitutional privilege against revealing confidential sources or should have a common law privilege under Federal Rule of Evidence 501.

The Court having declined to answer this question, Risen now faces testifying or being held in contempt. (Or he must throw himself on the “hinted” mercy of the Justice Department.) This is a great tragedy for a great journalist. But it is not necessarily a great tragedy for great journalism.

Risen’s appeal was a case of Be Careful What You Wish For.

At the core of Risen’s protest is the often-mistaken belief that reporters cannot be compelled to disclose their confidential sources. The Supreme Court first addressed this question forty-two years ago in Branzburg v. Hayes, in which the Court effectively split 4-1-4 on whether journalists had a constitutional privilege against compelled disclosure. The majority opinion held that journalists do not.

But Branzburg did not foreclose such protections. State courts have long shielded media from compelled disclosure, with forty-nine states and the District of Columbia offer varying statutory or common law protections. And Justice Powell’s concurrence suggested that journalists might have a constitutional privilege on different facts, particularly if the subpoena had not been issued by a grand jury. Since then, the circuit courts have recognized a variety of protections: “nine circuits have acknowledged, and only the Sixth Circuit has rejected, a qualified privilege for confidential information in civil cases, and … four circuits extend the privilege in criminal cases and some over non-confidential information in civil cases.” (That’s from this essay about the flawed Free Flow of Information Act of 2013; the federal media shield folly was also mentioned in my previous guest visit.) The result has been that journalists get different levels of protection in different jurisdictions—but in most jurisdictions they get some protection.

Had the Supreme Court agreed to hear Risen’s petition, it is likely that there would be uniformity regarding compelled disclosure of journalists’ confidential info. (It is unclear whether that uniformity would have been limited to confidential sources or would have extended to nonconfidential notes, unused materials, journalist observations, etc.) That uniformity could have increased protections and thereby decreased disincentives to sharing sensitive or confidential information.

Yet, in many circuits the uniformity might cut the other way, restating Branzburg in a manner that results in a weaker media shield. In fact, this seems more likely. In a post-legacy-media era in which people do journalism but aren’t necessarily journalists, legislators and judges have found it so difficult to determine to whom a reporter’s privilege should apply. (The debate over the federal media shield bill is paradigmatic. See n.5.) In this context, it is unlikely the Supreme Court would be willing to establish a broad reporter’s privilege—and in a national security case, for that matter.

Of course, just because the government can compel Risen to testify, does not mean that it should. The spirit of the First Amendment suggests otherwise…

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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.