Supreme Court Watch: Court Declines To Hear Significant Reporter's Privilege Case

Supreme Court declines to hear the divided Fourth Circuit opinion on whether the First Amendment provides a privilege protecting a reporter from being compelled to testify in a criminal case involved alleged disclosure of classified information; proceedings, in Risen v. United States (No. 13-1009); Will the reporter testify if called at trial or will he risk contempt by declining to testify? Does the denial of certiorari review shift the debate on the recognition of any reporter's privilege definitively to Congress and away from the Courts?

The Federal Evidence Blog previously noted the divided Fourth Circuit ruling in which the majority held:

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.

United States v. Sterling, 724 F.3d 482, 492 (4th Cir. July 19, 2013) (citing In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146 (D.C. Cir. 2006)).

Yesterday, on June 2, 2014, the Supreme Court denied certiorari review of the case. Two key questions are now raised by the denial. First, will the reporter be called to testify and risk contempt of court if he fails to testify as he previously said he would? Second, does the denial signal that any reporter shield measure will rely on congressional action?

Summary Of Prior Proceedings

Defendant Jeffrey Sterling, a former CIA employee, was indicted based on allegation that he provided information to reporter James Risen for his book, "State of War: The Secret History of the CIA and the Bush Administration," concerning CIA efforts to undermine the Iranian nuclear development program. Prosecutor subpoenaed reporter Risen who moved to quash the subpoena and requested a protective order. The trial court quashed the subpoena for reporter identify the source for his account of the CIA operation in the book. The district court concluded 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). See also Continued Controversy Over Reporter's Privilege Highlighted In Fourth Circuit Opinion (summarizing case). With the denial of certiorari review, the government will need to decide whether to call reporter Risen to testify. If the reporter is called and declines to testify, he will risk contempt of court.

Will The Debate Now Shift From The Courts To Congress?

The issue of a reporter's privilege has divided the courts. See, e.g., Division Among The Courts On Recognition And Scope Of Reporter's Privilege. In our annual Prospective View of evidence issues for 2014, we asked whether the time had come for Congress to enact a new media shield privilege?

In the current Congress, the Senate Judiciary Committee on November 6, 2013, recommended adoption of S. 987, the Free Flow Of Information Act Of 2013. See Sen. Report 113-118, 113th Cong., 1st Sess. (Nov. 6, 2013). The measure, which was introduced on May 16, 2013 by Senator Charles E. Schumer of New York, remains pending for Senate consideration. See Senate Judiciary Committee Reports "Free Flow Of Information" Act - Little Prospect For Passage This Year (summarizing legislative activity). A comparable measure, introduced on May 14, 2013 by Representative Ted Poe of Texas, H.R. 1962, the Free Flow of Information Act of 2013, remains pending in the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. See generally Federal Media Shield Law Headed To Senate Floor? (summarizing recent activity).

Yesterday, the Federal Evidence Blog noted that the House of Representatives approved an amendment to the 2015 appropriations bill that prohibits the federal government from using funds to force journalists to testify about certain confidential information or sources. The amendment specifically provides:

SEC. 561. None of the funds made available by this Act may be used to compel a journalist or reporter to testify about information or sources that the journalist or reporter states in a motion to quash the subpoena that he has obtained as a journalist or reporter and that he regards as confidential.

If this amendment is approved by the Senate and signed into law, will it apply to reporter Risen? See New Legislative Path For A Federal Media Shield Law?.

Prior Congressional Action

The House of Representatives has 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. See 155 Cong. Rec. H4204 (March 31, 2009) (passage of H.R. 985, 111th Cong., 1st Sess., Free Flow of Information Act of 2009); H. Rep. No. 61, 111th Cong., 1st Sess. (2009); 153 Cong. Rec. H11563-67 (Oct. 16, 2007) (debate on H.R. 2102, 110th Cong., 1st Sess., Free Flow of Information Act of 2009); 153 Cong. Rec. H11574-75 (Oct. 16, 2007) (passage of H.R. 2102 by a vote of 398 to 21); H. Rep. No. 370, 110th Cong., 1st Sess. (2007).

The Senate Judiciary Committee has twice reported out legislation which then died in the Senate. On February 13, 2009, S. 448 was introduced by Senator Arlen Specter. See 155 Cong. Rec. S2340-43 (Feb. 13, 2009) (statement upon introduction). On September 10, 2009, the measure was amended in the Senate Judiciary Committee. See Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009); Statement of Senator Arlen Specter (Sept. 10, 2009). On December 10, 2009, the bill was reported out by the Senate Judiciary Committee without a report, with no further action in the Senate. In the prior Congress, on October 22, 2007, the Senate Judiciary Committee reported out S. 2035, 110th Cong., 1st Sess., without a report to the Senate. See 154 Cong. Rec. S11329-30 (Sept. 10, 2007) (statement of Sen. Specter on introduction); see also Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009) (noting the "Committee favorably reported a similar measure, cosponsored by Senators Lugar, Dodd, Specter, Schumer, Graham and myself, by a strong, bipartisan 15 to 4 vote"). However, on July 30, 2007, the Senate rejected a cloture motion to proceed with debate and the measure died. See 154 Cong. Rec. S7710-22 (July 30, 2007) (cloture not invoked by a vote of 51 - 43) (Under Senate Rule XXII, 60 votes are normally required to invoke cloture or end debate).

During his confirmation hearing, Attorney General Eric Holder stated that he supports a federal shield law if "carefully crafted." See also Statement of Senate Judiciary Committee Chairman Patrick Leahy (Sept. 10, 2009) ("I was pleased that, during his confirmation hearing, Attorney General Eric Holder expressed his support for a carefully crafted Federal shield law. He repeated that support when he testified before this Committee in June.").

Last July, the Department of Justice issued new guidelines governing federal prosecutors efforts to obtain evidence from members of the media. New DOJ Guidelines Impose Higher Restrictions To Obtain Evidence From Members Of The Media (July 15, 2013). The guidelines were issued following criticism of the recent use subpoenas and legal process issues to reporters for information. See, e.g., Congress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records.

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Given the significance of this case and issue, the key briefs before the Supreme Court, Fourth Circuit, and District Court are provided below:

Certiorari Petition Briefs

Amicus Briefs

  • March 26, 2014: Brief Amicus Curiae of International Women's Media Foundation
  • March 26, 2014: Brief Amicus Curiae of The Thomas Jefferson Center for the Protection of Free Expression
  • March 26, 2014: Brief Amicus Curiae of ABC, Inc., Advance Publications, Inc., The Associated Press, Bloomberg L.P., Cable News Network, Inc., CBS Corporation, The Daily Beast Company LLC, Dow Jones & Company, Inc., The E.W. Scripps Company, First Amendment Coalition, Fox News Network, L.L.C., Gannett Co., Inc., The McClatchy Company, National Association Of Broadcasters, National Public Radio, Inc., NBCuniversal Media, LLC, The New York Times Company, News Corporation, Newspaper Association Of America, Radio Television Digital News Association, Reporters Committee For Freedom Of The Press, Reuters America LLC, Tribune Company, The Washington Post And WNET

Fourth Circuit Opinion and Briefs

District Court Ruling and Briefs

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