The Supreme Court denied a New York Times reporter's plea to intervene in a case in which the government has sought to compel the reporter to reveal whether one of his sources was a former CIA official under indictment for leaking classified information. The decision means that the reporter, James Risen, could be compelled to reveal his source or face jail time.
"The case presented the Court with a terribly difficult question of First Amendment law with regard to whether the Constitution recognizes any kind of reporter’s privilege," said Stephen Vladeck, a professor at American University's Washington College of Law. "There’s wide division on this question among both commentators and lower courts. And so the easiest way to answer that question, from the Justices’ perspective, is to not answer it at all."
"The case presented the Court with a terribly difficult question of First Amendment law with regard to whether the Constitution recognizes any kind of reporter’s privilege."'
Risen's plight has become a flashpoint for First Amendment issues, and for critics of the Obama administration, a symbol of the White House's excesses in attempting to limit disclosure of national security information. National security reporting relies at least in part on unauthorized disclosures of information the government would rather not be disclosed, if reporters can be compelled to reveal their sources then those sources won't speak. If those sources don't speak, then it's virtually impossible for journalists to inform the public about matters the government would rather keep secret.
Effectively, the government will have censored critical coverage of its actions, even if it's done so indirectly. Administration officials make authorized -- if often anonymous -- leaks to the press constantly, and if the only ones that go unprosecuted are those sanctioned by government higher ups then bending public opinion to their purposes becomes that much simpler.
"Reporters oftentimes have, in order to get information for stories the public needs to participate in a democracy, on occasion reporters have to agree to protect the identity of those sources," said Lucy Dalglish, dean of the University of Maryland's Philip Merrill College of Journalism.
The Obama administration has aggressively pursued prosecutions against unauthorized leakers. Seven of eleven prosecutions under the espionage act have taken place under the Obama administration. A 2013 report from the Committee to Protect Journalists found that "In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press."
The U.S. government believes former CIA official Jeffrey Sterling was the source for a chapter in Risen's 2006 book State of War about a failed effort to derail Iran's nuclear program. Sterling was indicted in 2010 for allegedly leaking classified information; in 2011 Attorney General Eric Holder authorized the issuing of a subpoena compelling Risen to testify in Sterling's trial, and Risen refused. A federal district court sided with Risen, but a subsequent decision by the U.S. Court of Appeals for the Fourth Circuit reversed the earlier ruling and ordered Risen to testify, concluding that there is no "reporter's privilege" that prevents journalists from having to reveal their sources. Risen asked then unsuccessfully asked the Supreme Court to take the case.
The Supreme Court has previously held that reporters do not have a special privilege that allows them to hide their sources if compelled by the government to testify. In its 1972 decision in Branzburg v. Hayes, Justice Byron White wrote that the high court would not interpret "the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy."
Nevertheless, government officials have since been wary of the public attention -- and bad press -- that comes with compelling reporters working the public interest to reveal their sources. Some courts have, despite the Branzburg decision, concluded that individuals acting as journalists do have increased First Amendment protections -- the Supreme Court's refusal to take this case means that disagreement will not be definitively settled.
"The decision is the least-worst alternative for First Amendment advocates," said Vladeck, "who would have been far worse off with a Supreme Court decision affirming the Fourth Circuit’s holding that the First Amendment categorically does not recognize a reporter’s privilege."
Dalglish said that she hopes the decision will renew a push in Congress for a media shield law that would protect reporters from having to reveal their sources. "I think this is the impetus the Senate finally needs to act on the shield law," Dalglish said. She added however, that with technological advances the government has many more options for determining who reporters' sources are without ever having to ask.
"The government can figure out where we're going, what airplane tickets we're buying, who we're talking to on the phone, what hotels we're staying in," Dalglish said. "On the positive side, we're probably not going to see as many subpoenas in the future, but on the negative side we probably won't see them because they're already going to know who we're talking to, because they can electronically track us."
Reporters and First Amendment advocates have charged that the administration's actions are a violation of press freedoms, an accusation the White House has been verbally sensitive to without substantively altering its behavior. Holder told a gathering of reporters that “as long as I’m attorney general, no reporter who is doing his job is going to go to jail. As long as I’m attorney general, someone who is doing their job is not going to get prosecuted.”
Monday's Supreme Court decision will serve as a test of that pledge, because Risen has said he will not testify.