On June 2, the U.S. Supreme Court decided not to â€œgrant certiorariâ€ to New York Times reporter James Risen, who was asking the Court to review an earlier decision of the U.S. Court of Appeals for the Fourth Circuit that there exists no First Amendment or common law privilege that protects a reporter from having to testify in federal court about the identity of a confidential (or potentially any) source.
Risen now faces the prospect of being held in contempt of court, with a potential penalty including significant fines and/or jail time, for refusing to identify the source of information used in his 2006 book State of War in which he describes a failed CIA plot to undermine Iranâ€™s nuclear program. The U.S. government has subpoenaed Risen to testify as part of criminal charges filed under the Espionage Act against former CIA employee Jeffrey Sterling (whom the government believes leaked this classified information to Risen).
The Supreme Courtâ€™s action means the Fourth Circuit is the latest â€“ and by no means the first â€“ federal Court of Appeals to rule that there exists no federal reporterâ€™s privilege. In its written opinion, the Court of Appeals â€“ as the United States Supreme Court did 40 years ago in the leading case regarding the Reporterâ€™s Privilege, Branzburg v. Hayes — invited Congress to act in this area.
Thatâ€™s exactly what we hope will happen.
In fact, AAN just joined more than 70 media organizations and companies on to a letter asking Senate leadership to bring the Free Flow of Information Act (S 987) to the Senate floor (this isnâ€™t the first time weâ€™ve made this request to the Senate, by the way).
This bill passed the Senate Judiciary Committee in September 2013 by a 13-5 vote, the product of significant negotiation and compromise among Committee members, especially as to the definition of a â€œcovered journalistâ€ who would enjoy the privilege. The problem is that leadership is unlikely to bring the bill to the floor until it is certain that it has the 60 votes needed to avoid prolonged debate and, while we have been working to prove to leadership that the votes are there (we clearly believe there are at least the 50 required to pass the bill), many Senators are not willing to go on the record in support of (or in opposition to) S 987 unless they know itâ€™s going to the floorâ€¦
Thatâ€™s where you can help. Please consider reaching out to your Senator asking him or her to tell Senate Leadership that they want a vote on the Free Flow of Information Act. Or just go directly to Senate Leadership with that request.
Again, we strongly believe the bill will pass (and also believe that, when push comes to shove, 60 votes will be there to cut off debate on the bill); we believe it will then pass the House of Representatives. And the White House has supported this compromise language, so we believe that President Obama (who was a co-sponsor of an earlier version of the Free Flow of Information Act when he was a Senator) will sign the bill into law. Anything would help. Editorials are good; personal contacts are better.
Remember, this isnâ€™t just about reporters who cover national security and federal government issues. A federal shield law would reduce the number of subpoenas issued to reporters in civil litigation that happen to be filed in federal court.
So, if your reporter is covering an interesting dispute between two local businesses and one of those businesses then sues the other, he or she would finally have protection if called by one party to testify as to research he or she did, interviews he or she performed, or notes he or she kept in compiling this story. A federal reporterâ€™s privilege does matter at the local level. (You can read a more thorough discussion of how this affects AAN members here).
Please contact AAN Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg[at]fhhlaw.com for more information.