Lyle Denniston looks at a rising chance that the Supreme Court might be persuaded to redefine privileges sought by reporters seeking to protect their sources.
“The law governing the relationship between reporters and their sources has become increasingly less clear. This Court has not considered whether journalists have any right not to reveal the identity of confidential sources since Branzburg v. Hayes was decided over 40 years ago….The lower courts have struggled to interpret the conflicting principles of Branzburg…”
– Excerpt from an appeal filed in January at the Supreme Court for James Risen, a reporter for The New York Times, seeking to block a subpoena to compel him to testify in court about his sources for a discussion in a book about secret U.S. efforts to scuttle the nuclear arms program of Iran’s government.
“The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not….We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof…”
– From the majority opinion in the Supreme Court’s 1972 decision in Branzburg v. Hayes, rejecting by a 5-4 vote claims by newspaper reporters in Kentucky, New York and Rhode Island for a constitutional “privilege” not to be forced to disclose the identity of news sources to grand juries investigating crimes involving drugs and the activities of militant groups.
“Certainly we do not hold…that state and federal authorities are free to ‘annex’ the news media as ‘an investigative arm of government.”…The courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”
– From the separate opinion by Justice Lewis F. Powell, Jr., seeming to limit the scope of the Branzburg decision. His vote was necessary to make a majority for the ruling.
WE CHECKED THE CONSTITUTION, AND…
It is a long-standing legal principle, as countless courts have phrased it, that “the public has a right to every man’s evidence.” But there can be exceptions, and probably the most obvious one is the Fifth Amendment’s promise that no one can be forced to reveal that they have committed a crime. And there are many “privileges” against forced testimony in court – for spouses about each other, for religious counselors and what the faithful say to them, for doctors’ diagnosis of their patients, for lawyers’ advice to their clients.
But those “privileges” have grown up by the choice of legislatures and courts, not by the command of the Constitution, although some of these draw some theoretical support from constitutional principles – like the Sixth Amendment right to a lawyer in a criminal case and
Fourth Amendment guarantees of privacy.
No entity in America has been more diligent than the news industry in trying to gain constitutional status for a right not to be forced to give up information at the government’s command. If anything, news organizations have intensified that effort in recent years, as the number of subpoenas demanding to know reporters’ sources has ballooned to historic levels. The investigative zeal of the industry seems not to have cooled because of this, but reporters and their publishers fear increasingly that their secret sources will dry up if this trend goes on. Thus, the rising plea for a guaranteed form of constitutional protection.
That plea had found sympathetic ears in a number of courts around the country, including the pace-setting federal courts of appeals. Six of those courts, in one degree or another, have recognized that the First Amendment does confer at least a qualified form of protection against compelled disclosure of news sources – a shield that generally applies if government could get the information elsewhere than from reporters. In addition, all but one of the states – Wyoming – recognize the same right under state law.
The Supreme Court, in the meantime, has passed up a couple of chances to reconsider the claim of a testimonial “privilege,” and has discussed the Branzburg result in other cases without questioning it. But there is now a rising chance that the Court might be persuaded to reopen the issue because, for the first time, a federal appeals court has flatly refused to acknowledge such a privilege for reporters seeking to protect their sources. In doing so, that court relied directly on the Branzburg decision.
The Fourth U.S. Circuit Court of Appeals, based in Richmond, Va., in a decision that news industry lawyers say conflicts directly with the results in six other federal appeals courts and the situation in nearly all of the states, turned down a privilege claim by New York Times reporter James Risen. That is the most visible source-protection dispute now unfolding in the country, and Risen’s lawyers have now asked the Supreme Court to step in and hear his claim.
Risen, who specializes in covering national security matters and thus relies quite heavily upon sensitive sources to whom he promises confidentiality, is facing a Justice Department subpoena to reveal his dealings with Jeffrey Sterling, a former Central Intelligence Agency officer. Risen’s relationship supposedly would be a part of a government trial of Sterling on charges of leaking secret information.
Risen’s problems originated in Chapter 9 of his 2006 book, “State of War.” In those pages, he described a secret CIA initiative – “Operation Merlin” – that supposedly was a botched attempt by the CIA to feed scientific misinformation to scientists in Iran in hopes of undermining the efforts of that country to build a nuclear war weapon. An FBI investigation led authorities to Sterling, and Risen’s book chapter led them to him on the theory that Sterling was a source for the “Operation Merlin” revelations.
A federal judge ruled for Risen, but that was overturned by a divided decision of the Fourth Circuit Court last summer. With Risen’s appeal now awaiting the Supreme Court’s attention, the federal government has yet to reply. Its response is currently due in late March. The Court could act on the case within weeks after the Justice Department files its views. The court, of course, has complete discretion whether it wants to get involved, but a clear split among the appeals courts is often a reason for it to do so.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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