Ruling against New York Times’ James Risen: Horrible

“Disappointed” was the word I used last Friday with a reporter who asked my reaction to the federal appeals court ruling in the case of New York Times reporter James Risen, who’s fighting a government subpoena seeking to force him to identify his sources for a chapter of his 2006 book about the CIA, “State of War.”

“Horrified” was the word I came up with after the interview, after I’d taken the time to read all 118 pages of the three-judge panel’s decision that declared:

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.”

On its own internal logic, the 2-1 opinion is sound. It adheres to the U.S. Supreme Court philosophy established in the 1972 Branzburg ruling.

But it is a disastrous decision, as was Branzburg.

The Risen ruling accepts as fact much of the government’s position, to the extent that the majority opinion says Risen is the only person who knows whether his source committed a crime.

Luckily the dissenting judge disputes at length his colleagues’ conclusions, summing up with this statement:

The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.”

Branzburg created 40 years of hodgepodge appellate rulings, some of which established a reporter’s privilege in civil cases and some of which established a three-part balance to help judges decide if the government’s desire to intrude into newsgathering outweighs the reporter’s determination to protect confidential sources.

Another effect of Branzburg has been the adoption by more states of shield laws – so much so that today 48 states and the District of Columbia have laws or judicial rulings protecting journalists and their sources to varying degrees.

But there still is no federal shield law despite open invitations to Congress from the Supreme Court and appellate courts to create one.

Almost four years ago, SPJ and dozens of other journalism organizations and news outlets came close to achieving the long-sought goal of a shield law. (SPJ’s Shield Law page is here, with more background and information.) The House passed one, and the Senate Judiciary Committee passed one. But it never reached the Senate floor, much less a conference committee to hash out the differences.

Now, thanks to overreach by the Justice Department in the case of a secret subpoena for The Associated Press’ phone records and an administrative warrant seizing the emails of Fox News reporter James Rosen, sentiment in favor of a federal shield law has rekindled.

Last week, Senate Judiciary Committee members Charles Schumer and Lindsey Graham and other sponsors announced that markup of S. 987, the same shield bill the committee approved in 2010, will take place Aug. 1.

The exciting news out of Schumer and Graham’s press conference was that they intend to insert fresh language into the bill based on proposed changes in Justice Department policy that Attorney General Eric Holder announced a few days before the Senate presser.

Holder’s proposed revisions would strengthen — in journalists’ favor — the DOJ guidelines that his department stretched beyond recognition to get the AP records and Rosen’s emails.

The Senate shield bill changes promised by Schumer would make those revisions law, and let an impartial federal judge decide just how far the government can go in getting journalists to do its criminal investigative work.

That’s much better news than the Fourth Circuit Appeals Court’s flawed Risen ruling.


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