James Risen. / Alex Wong Getty Images for Meet the Press
The Supreme Court had a golden opportunity to sort out the tangled question of whether the First Amendment gives reporters the right to withhold confidential information from law enforcement officials. And on Monday, it punted.
It's an issue that desperately needs clarity. But the high court didn't want to play. And that's truly unfortunate.
So we remain with a landscape in which reporters such as James Risen of The New York Times, whose case the court declined to take up, will confront situations in which they have to choose between betraying a confidential source and going to jail.
All the more reason why it's critical that Congress stop dithering and pass the desperately needed federal shield law for journalists. More on that later.
This a big deal not just for journalists but for the general public, as well. There are cases in which whistle-blowers need anonymity to protect their lives or their livelihoods when they reveal information important to the public welfare - about corruption, unsafe conditions, environmental risks and on and on. It's unconscionable for reporters to face time in the slammer for doing their jobs and honoring their pledges.
Risen was challenging a federal appeals court ruling that he had to testify about a confidential source he used in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration.
The federal government wants Risen to testify in the case of former CIA officer Jeffrey Sterling. At issue is a chapter in Risen's book that includes classified information about CIA efforts to thwart Iran's nuclear program. A district judge ruled that Risen didn't have to give up his source, but the U.S. Court of Appeals for the 4th Circuit in Richmond disagreed.
Given all the sturm und drang that crops up periodically about this issue, you'd think the Supremes might want to resolve things. Nine years ago ago, New York Times reporter Judith Miller went to jail for 85 days rather than give up a source.
And it's not like the justices should be over the issue. They have only grappled with it once. That was in Branzburg v. Hayes, way back in 1972. A lot has gone down in the ensuing decades.
In that 5-4 decision, the justices concluded that journalists had no First Amendment protection against grand jury subpoenas. End of story, right?
Well, not really. Justice Lewis Powell, part of the majority, wrote a concurring opinion in which he said justices should try to find the "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony."
What exactly does that mean? Hard to know. But for years, media lawyers seized on that slender reed - with surprising success - to buttress their position that there really is a reporter's privilege, honest. But in the past decade or so, the decisions have been going the other way. (Appeals Court Judge Albert Diaz has called the Branzburg precedent "clear as mud.")
Thus, the campaign for a federal shield law, which would give reporters some measure of of protection against having to break their oaths of confidentiality in federal proceedings. (Forty-eight states and the District of Columbia provide such protection.) The bill is not absolute: In national security cases, courts would be asked to apply a balancing test to see if national security concerns trumped free press prerogatives. The measure is backed by a large coalition of media organizations, media companies and First Amendment enthusiasts.
With support from the Obama administration, there were high hopes that this would be the year that Congress finally rode to the rescue. Last summer, the Senate Judiciary Committee approved the bill, but since that time, the action has ground to a halt, despite the fact that a majority of senators favor it, and the House has passed similar measures in the past.
Paul Boyle, senior vice president of public policy at the Newspaper Association of America, says he hopes the Risen setback will "get some juice" behind the shield law. "Sometimes, it takes a crisis situation to call attention to the need for legislation," he says.
So two things should happen. Congress should do what it should have done a long while back and enact the federal shield law. And the Justice Department should jettison its efforts to force Risen to testify.
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