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U.S. | NYT NOW
Supreme Court Rejects Appeal From Reporter Over Identity of
Source
By ADAM LIPTAK JUNE 2, 2014
WASHINGTON The Supreme Court on Monday turned down an appeal from James Risen, a New
York Times reporter facing jail for refusing to identify a confidential source.
The courts one-line order gave no reasons but effectively sided with the government in a
confrontation between what prosecutors said is an imperative to secure evidence in a national security
prosecution and what journalists said is an intolerable infringement of press freedom.
The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of
his 2006 book State of War. Prosecutors say they need Mr. Risens testimony to prove that the source
was Jeffrey Sterling, a former Central Intelligence Agency official.
The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Mr. Risen to
comply with the subpoena. Mr. Risen has said he will refuse.
The Obama administration has sent mixed signals in the case and on the subject of press freedom in
general. In its Supreme Court brief in the case, Risen v. United States, No. 13-1009, it told the justices
that reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by
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confidential sources.
But Attorney General Eric H. Holder Jr. hinted last week that the Justice Department might choose
not to ask the trial judge to jail Mr. Risen for contempt should he refuse to testify.
The Obama administration has pursued leaks aggressively, bringing criminal charges in eight cases,
compared with three under all previous administrations combined.
At the same time, the administration has supported efforts in Congress to create a federal shield law
that would allow judges to quash some subpoenas to journalists. The Justice Department has also issued
new internal regulations limiting the circumstances in which prosecutors can subpoena reporters
testimony and records.
The Supreme Court has not directly addressed whether journalists have protections from subpoenas
since its 1972 ruling in Branzburg v. Hayes. In that 5-to-4 decision, the court ruled that the First
Amendment provided no such protection against grand jury subpoenas.
Justice Lewis F. Powell Jr. joined the majority but also wrote a short, cryptic concurrence calling on
judges to strike the proper balance between freedom of the press and the obligation of all citizens to
give relevant testimony.
For decades, press lawyers had considerable success in persuading courts to interpret the
concurrence broadly. That run of victories started to wane in 2003, when Judge Richard A. Posner of the
United States Court of Appeals for the Seventh Circuit, in Chicago, surveyed the legal landscape.
A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a
reporters privilege, he wrote.
The case against Mr. Sterling concerns Operation Merlin, a C.I.A. plan to sabotage Iranian nuclear
research by having a Russian scientist sell flawed blueprints to Iran. A chapter of Mr. Risens book
described the operation.
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In 2011, Judge Leonie M. Brinkema largely quashed the subpoena to Mr. Risen. A criminal trial
subpoena is not a free pass for the government to rifle through a reporters notebook, she wrote, adding
that prosecutors could prove their case against Mr. Sterling without Mr. Risens testimony.
A divided three-judge panel of the Fourth Circuit reversed, relying on the Supreme Courts
Branzburg decision.
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