Will they or won't they?
James Risen, a New York Times reporter and author, was subpoenaed to testify about the source of information in his book, State of War. Nearly everyone is certain that the source of that leak was the defendant, Jeffrey Sterling, but the government argues that Risen can provide the only direct, non-circumstantial proof of the leak.
The Fourth Circuit, back in July, refused to recognize a common law reporter's privilege that the Supreme Court has also chosen not to recognize. The majority of the panel held that the only privilege recognized to date has been in civil cases, while the dissent highlighted the policy considerations that warrant recognizing such a privilege.
Now, according to Courthouse News, Risen and Sterling are seeking an en banc rehearing, and briefs have been submitted on both sides.
The majority opinion refused to recognize what it called a "strained" interpretation of Justice Powell's concurrence in Branzburg v. Hayes that would have balanced the reporter's need to protect his confidential sources against the government's need for the information in ongoing criminal proceedings.
An amicus submitted by 27 media organizations cites a Fourth Circuit case, Steelhammer, as well as more recent precedent from other circuits, such as an Eleventh Circuit holding from earlier this year ( "Our Circuit recognizes a qualified privilege for journalists, allowing them to resist compelled disclosure of their professional newsgathering efforts. This privilege shields reporters in both criminal and civil proceedings.") to argue that such a strained interpretation has already been made, in this circuit and elsewhere, and that such a privilege should exist, especially in adversarial criminal proceedings, as opposed to the setting of Branzburg -- grand juries.
Steelhammer, it should be noted, was a civil contempt case.
Leave it Be
The government's response to Risen and Sterling's petitions for en banc rehearing argues that Branzbug is clear and controlling: a reporter that witnesses a crime cannot remain silent and refuse to identify the perpetrator. No Fourth Circuit precedent, nor any other appeals court precedent, holds differently.
The panel also held, in the alternative, that if such a reporter's privilege existed, and if it covered Risen, that first, Risen may have waived the privilege by disclosing the information to third parties, and second, that the facts of the case demonstrate that the government's need for the information outweigh Risen's interest.
Civil, Criminal, Adversarial, and Investigatory
Should the reporter's shield cover all legal proceedings?
In Branzburg, the setting was a grand jury, where investigation is the motive and the proceedings are secret. In this case, the setting is a public, adversarial criminal trial. In Steelhammer, the setting was a civil contempt trial. In other Fourth Circuit cases in which reporter's privilege has made an appearance, the setting was also civil.
The line, for privilege applicability, seems to sit between civil and criminal after the panel's decision. An en banc rehearing could shift that line, and allow privilege in all cases not explicitly covered by Branzburg (everything but grand juries) or it could leave the line between criminal and civil.
Either way, the line is muddled as is. If the purpose of privilege is to encourage reporting, free speech, and an unrestrained press, the uncertainty of privilege is certainly harming that goal. The Fourth Circuit, or the Supreme Court, would do well to clarify the situation.
- United States v. Sterling (FindLaw's Caselaw)
- 4th Cir. Hears Reporter's Privilege Arguments in James Risen Case (FindLaw's Fourth Circuit Blog)
- NYT's James Risen Claims Reporter's Privilege in CIA Leak Appeal (FindLaw's Fourth Circuit Blog)