Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling

As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force.  The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research.  The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:

 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.

Read the whole case here.

The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime."  The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases. 

The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "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."

Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information.  Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.  

I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.

This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.