FOI Update: Federal appeals court rules against reporter’s privilege in James Risen case

A federal appeals court ruled July 19 that the First Amendment does not protect reporters from being forced to testify against confidential sources suspected of sharing unauthorized information with them, according to The New York Times.

This decision against the so-called reporter’s privilege came from the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va. The court ruled James Risen, an author and a national security reporter for the Times, must testify against a former Central Intelligence Agency official charged with giving him classified information. Risen said he’s willing to go prison to protect his source, according to the Times.

The information was not for an article in the Times. It was for a chapter in Risen’s 2006 book, “State of War,” that portrays efforts by the CIA. under the Clinton administration to trick Iranian scientists as “reckless and botched in a way that could have helped the Iranians gain accurate information,” The Times said.

Chief Judge William Byrd Traxler Jr. justified the ruling by writing: “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.”

The 118-page decision comes one week after Attorney General Eric Holder announced new guidelines for leak investigations to supposedly tighten the circumstances for obtaining reporter’s records.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press, told the Times.

For more information about the case, read The New York Times article.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at or on Twitter: @KaraHackett.

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