Like lawyers and priests, people tell journalists secrets. Unlike lawyers and priests, journalists get to spill those secrets to the public.
Occasionally the long arm of the law knocks on a journalist's door, demanding the names of secret-sharing sources. The journalist, of course, can choose to play the moral superiority trump card and declare, "I would rather go to jail than reveal my sources." Sometimes they wind up in jail. Sometimes they ask the courts to apply the reporter's privilege.
Yesterday, New York Times reporter James Risen asked the Fourth Circuit Court of Appeals to let him keep his sources secret.
Risen was subpoenaed last year to testify about sources for his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. The government believes that former CIA officer Jeffrey Sterling leaked information to Risen, according to The New York Times.
The government is appealing U.S. District Judge Leonie Brinkema's July 2011 decision that Risen did not have to identify his sources in the trial. In addition to arguing that the government's appeal is premature and that his testimony is not critical in the case against Sterling, Risen is asking the Fourth Circuit to uphold the basic principle of reporter's privilege, reports Politico.
The scope of the reporter's privilege is not explicitly defined, but the Supreme Court ruled in Branzburg v. Hayes that reporters cannot invoke the First Amendment as justification for refusing to testify before a grand jury.
While Politico notes there is speculation that James Risen's case could proceed to the Supreme Court for clarification of the scope and application of the reporter's privilege, that seems unlikely. In 2005, the Supreme Court refused to consider New York Times reporter Judith Miller's appeal in the Valerie Plame leak case, which also involved a reporter's refusal to testify about a source before a grand jury.
- Branzburg v. Hayes (FindLaw's CaseLaw)
- Can Bloggers Invoke the Journalist's Privilege to Protect Confidential Sources Who Leak Trade Secrets? (FindLaw)
- Should Your Company Go After Anonymous Bloggers? (FindLaw's Free Enterprise)
- Fourth Circuit Court of Appeals (US Courts)