Continued Controversy Over Reporter's Privilege Highlighted In Fourth Circuit Opinion

Divided Fourth Circuit opinion is the latest ruling reflecting the disagreement in the courts on whether a federal reporter's privilege exists and its scope; circuit concludes that the First Amendment does not provide a basis to recognize a reporter's privilege; circuit distinguishes application of any privilege in a civil versus criminal proceeding; circuit suggests that either the Supreme Court will have to revisit its precedent or Congress will have to enact legislation in order to recognize a federal reporter's privilege, in United States v. Sterling, 724 F.3d 482 (4th Cir. July 19, 2013) (No. 11–5028)

A few weeks ago, the Federal Evidence Blog noted the division among the federal circuits about whether a reporter's privilege is recognized and the scope of any privilege in the federal courts. Then two days after that blog post, a divided Fourth Circuit weighed in on the matter in United States v. Sterling, 724 F.3d 482 (4th Cir. July 19, 2013) (No. 11–5028). The Fourth Circuit indicated:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
Sterling, 724 F.3d at 492 (citing In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146 (D.C. Cir. 2006) ("The Court is not of one mind on the existence of a common law privilege. Judge Sentelle would hold that there is no such common law privilege for reasons set forth in a separate opinion. Judge Tatel would hold that there is such a common law privilege. Judge Henderson believes that we need not, and therefore should not, reach that question. However, all believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing.")).

Trial Court Proceedings

In the recent Fourth Circuit case, former CIA employee Jeffrey Sterling was suspected by authorities as being the source for an portion of reporter James Risen's book, State of War: The Secret History of the CIA and the Bush Administration. Risen's account described a mismanaged effort by the CIA to sabotage the Iranian nuclear development program. On December 22, 2010, defendant Sterling was indicted on six counts -- three counts of Unauthorized Disclosure of National Defense Information under 18 U.S.C. § 793(d), and three counts of Unauthorized Disclosure of National Defense Information under 18 U.S.C. § 793(e). The government subpoenaed Risen, seeking his evidence regarding Sterling's alleged disclosures of national security information on the sabotage effort. The government moved in limine to admit the reporter's testimony and the reporter opposed and moved to quash the subpoena and for a protective order. See Government’s Motion In Limine To Admit The Testimony Of James Risen (May 23, 2011); Motion to Quash Subpoenaby James Risen and/or for Protective Order (June 21, 2011); Affidavit of James Risen (June 21, 2011) (with exhibits and attachments); Government's Response in Opposition to James Risen's Motion to Quash (July 1, 2011) and Exhibits; Government's Reply to Defendant's Opposition to Motion to Quash (July 1, 2011). After a hearing, the trial court quashed the government's effort to have the reporter identify the source for his account of the CIA operation in the book. See United States v. Sterling, 818 F. Supp. 2d 945 (E.D. Va. 2011); see also Hearing Transcript on Motions (July 7, 2011).

Government Interlocutory Appeal

The government filed an interlocutory appeal under 18 U.S.C. § 3731 to the Fourth Circuit, contending that the court erred in finding a First Amendment privilege to maintain confidential sources was possessed by the journalist. See Government's Appeal Brief (Jan. 13, 2012); Brief of Appellee James Risen (Feb. 14, 2012); Response Brief of Jeffrey Sterling (Feb. 14, 2012); Government's Reply Brief (Feb. 28, 2012).

No First Amendment Basis For Privilege

The Fourth Circuit reversed the district court ruling that the journalist held "a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist." United States v. Sterling, 818 F. Supp. 2d 945, 951 (E.D. Va. 2011). In analyzing the Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665, 707-710 (1972), the circuit that the First Amendment did not permit a "testimonial privilege" to shield a reporter from providing evidence in a criminal case:

The Branzburg Court considered the arguments we consider today, balanced the respective interests of the press and the public in newsgathering and in prosecuting crimes, and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise.
Sterling, 724 F.3d at 496.

Distinguishing Other Precedent

In addition to analyzing the issue under the First Amendment, the circuit also distinguished its civil precedent in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). The circuit applied a three-part test to determine whether a reporter would be required to disclose information: "(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information." LaRouche, 780 F.2d at 1139.

The Sterling court found LaRouche inapplicable:

LaRouche, however, offers no authority for us to recognize a First Amendment reporter’s privilege in this criminal proceeding. Not only does Branzburg preclude this extension, the distinction is critical, and our circuit has already considered and rejected such “a qualified [reporter’s] privilege, grounded on the First Amendment, against being compelled to testify in [a] criminal trial.” In re Shain, 978 F.2d 850, 851 (4th Cir. 1992) (emphasis added). ... To the extent our court has addressed the issue since Shain, we have continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases. ... There is good reason for this distinction between civil and criminal cases. It has roots in both the majority and concurring opinions in Branzburg, both of which highlight the critical importance of criminal proceedings and the right to compel all available evidence in such matters.
Sterling, 724 F.3d at 498 (citations omitted).

Applying Branzburg and its precedent, the Fourth Circuit concluded there was no reporter's privilege to be applied under the First Amendment. While the reporter may assert a Fifth Amendment privilege against self-incrimination, this right was unavailable since the government obtained a grant of immunity for the reporter to testify. The trial court ruling recognizing a First Amendment reporter's privilege was reversed.

No Common-Law Privilege Applied

The Fourth Circuit also declined to recognize a common law privilege under FRE 501. First, the circuit noted that it would not recognize a common law privilege based on its application of the Supreme Court decision in Branzburg. Sterling, 724 F.3d at 499 (citing In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1155 (D.C. Cir. 2006) (“The Supreme Court has rejected a common law privilege for reporters” and “that rejection stands unless and until the Supreme court itself overrules that part of Branzburg.”) (Sentelle, J., concurring)).

Second, the circuit rejected that FRE 501 provided any basis recognizing a common law reporter's privilege. While the evidence rule seemed expansive, the circuit noted that a reporter's privilege “may be recognized ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’“ (citing United States v. Dunford, 148 F.3d 385, 390–91 (4th Cir. 1998) (FRE 501 was adopted when Congress concluded it would not promulgate an expansive backage of new FRE)). Otherwise, "[w]hen considering whether to recognize a privilege, a court must begin with ‘the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” (citing Virmani v. Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) (quoting Jaffee v. Redmond, 518 U.S. 1, 9 (1996)).

In this connection the circuit noted that recognizing an evidentiary privilege for the press did not involve the same types of policy considerations as had led to recognition of the other evidentiary privileges by the courts. Indeed, recognition of a privilege for reporters here would only reward criminal conduct:

[U]nlike in the case of the spousal, attorney-client, and psychotherapist-patient privileges that have been recognized, the reporter-source privilege does not share the same relational privacy interests or ultimate goal. The recognized privileges promote the public's interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications. A reporter's privilege might also promote free and full discussion between a reporter and his source, but Risen does not seek to protect from public disclosure the “confidential communications” made to him. Risen published information conveyed to him by his source or sources. His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws. In sum, beyond the shared complaint that communications might be chilled in the absence of a testimonial privilege, Risen's proffered rationale for protecting his sources shares little in common with the privileges historically recognized in the common law and developed under Rule 501.
Sterling, 724 F.3d at 502-03 (citing Jaffee, 518 U.S. at 10; other citations omitted)). Concluded the circuit, "as the First Amendment and the common-law attorney-client privilege do not 'confer[ ] a license... to violate valid criminal laws, ... the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act" by recognition of a reporter's privilege.

Identifying Relevant Factors to Consider

In reviewing the issues, the circuit listed a fair number of conditions that warranted consideration in deciding if it were necessary to compel the reporter to provide evidence. This included:

  1. The reporter could "provide the only first-hand account";
  2. A "most serious crime ... the illegal disclosure of classified, national security information;"
  3. The crime had been indicted by the grand jury;
  4. There was no suggestion of "bad faith or ... harassment" in seeking the reporter's evidence,
  5. The information sought did not have "only a remote and tenuous relationship to the subject of the investigation";
  6. There was no “reason to believe" the reporter's evidence was not required by "a legitimate need of law enforcement”;
  7. The government was not "attempting to 'annex'" the reporter as a type of “investigative arm”; and
  8. The reporter's evidence "goes to the heart of the prosecution."
Sterling, 724 F.3d at 499 (quoting from Branzburg v. Hayes, 408 U.S. 665, 707-710 (1972) (Powell concurring)).

In reciting these considerations, the Fourth Circuit remarkably ends up where the Seventh Circuit was over a decade ago in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) ("It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas. We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist."). Similarly, the Fourth Circuit repeatedly emphasized that its disposition of the privilege claim was guided by a rather simple balance between "the respective interests of the press and the public in newsgathering and in prosecuting crimes, and ... so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must. We are not at liberty to conclude otherwise."

The Fourth Circuit majority concluded that either the Supreme Court or Congress would have to recognize a reporter's privilege:

We decline the invitation to step in now and create a testimonial privilege under common law that the Supreme Court has said does not exist and that Congress has considered and failed to provide legislatively. If Risen is to be protected from being compelled to testify and give what evidence of crime he possesses, in contravention of every citizen’s duty to do so, we believe that decision should rest with the Supreme Court, which can revisit Branzburg and the policy arguments it rejected, or with Congress, which can more effectively and comprehensively weigh the policy arguments for and against adopting a privilege and define its scope.
Sterling, 724 F.3d at 505.

Dissent Would Recognize A First Amendment Journalist Privilege

Fourth Circuit Judge Roger L. Gregory dissented, concluding that "common sense tells us the value of the reporter's privilege to journalism is one of the highest order. Indeed, reporters 'depend[ ] upon an atmosphere of confidentiality and trust' to carry out their mission, a mission critical to an informed and functioning democracy." Sterling, 724 F.3d at 522 (citing Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979) (“The interrelationship between newsgathering, news dissemination and the need for a journalist to protect his or her source is too apparent to require belaboring.”) (quoting Jaffee v. Redmond, 518 U.S. 1, 10 (1996)).

The dissent's analysis of circuit precedent, as well as that of other circuits, led it to recommend the circuit explicitly "recognize a qualified reporter's privilege in the criminal context, and evaluate the privilege using the three-part test enunciated in LaRouche as an 'aid' to help 'balance the interests involved.' I would add a caveat to this general rule, however; in cases involving questions of national security, if the three-part LaRouche test is satisfied in favor of the reporter's privilege, I would require consideration of two additional factors: the harm caused by the public dissemination of the information, and the newsworthiness of the information conveyed." Sterling, 724 F.3d at 524-25 (Gregory, dissenting).

Compare Seventh Circuit Position

It is interesting to contrast the observation of the Fourth Circuit with the Seventh Circuit in McKevitt:

It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances.... We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist. The approach we are suggesting has support in Branzburg itself, where the Court stated that “grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.”
McKevitt, 339 F.3d at 533 (citing CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 700 (7th Cir. 2002); Cohen v. Cowles Media Co., 501 U.S. 663 (1991); New York Times Co. v. Jascalevich, 439 U.S. 1317, 1325 (1978); United States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000)).

To a great degree, this assessment by the Seventh Circuit a decade ago essentially encompasses much of the bottom line for the Sterling majority -- "[w]hen considering whether to recognize a privilege, a court must begin with ‘the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” (citing Virmani v. Novant Health Inc., 259 F.3d 284, 287 (4th Cir. 2001) (quoting Jaffee v. Redmond, 518 U.S. 1, 9 (1996)). As such a reporter carries no privilege to decline to give evidence of a crime he or she has observed than any other person.

Congressional Activity

While the case arose in a unique posture, it highlights the uncertainty in the courts on the contours of any reporter's privilege. Ultimately, Congress has the authority to clarify this issue.

In summarizing prior congressional activity, the House of Representatives twice passed legislation which would establish a journalists' privilege on March 31, 2009 by voice vote, and on October 16, 2007 by a vote of 398 to 21. The Senate Judiciary Committee has twice reported out legislation which then died in the Senate, including in 2009 and 2007.

Based on questions about the ability of the Department of Justice to obtain information from and about reporters, there appears to be renewed interest in legislation. In announcing heightened Department of Justice standards to obtain evidence from members of the media, Attorney General Eric H. Holder, Jr. noted: "While these reforms will make a meaningful difference, there are additional protections that only Congress can provide." For more information, see Prior Blog Posts on the Reporter Shield Law.

______________________________

Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button

Federal Rules of Evidence
PDF