A recent ruling by the United States Court of Appeals for the Fourth Circuit rejected the claim by New York Times Reporter James Risen that he was entitled to shield his confidential source. Although it was the product of a 2-1 split decision, the ruling in United States v. Sterling was hardly surprising, as it hewed closely to a 1972 Supreme Court precedent, Branzburg v. Hayes.
Nonetheless, coming, as it does, in the midst of the government’s high-profile pursuit of legal action against self-styled whistleblowers Bradley Manning and Edward Snowden, as well as disclosures of the surveillance of reporters, the Sterling case places the onus on the Obama Administration to put its political capital where its mouth is: Having assured the public that the Justice Department respects the role of the press, the Administration should forcefully back federal legislation to give reporters a qualified shield for their sources; and even absent legislation, the Justice Department should fast-track the implementation of Executive guidelines limiting the targeting of reporters.
After describing and assessing the appeals court ruling in Sterling, I will briefly set out here the case for action by the political branches.
Does Supreme Court Precedent Leave Room for a Federal Shield?
The ruling regarding Risen arises out of the federal prosecution of Jeffrey Sterling, a former CIA agent who faces criminal charges under the federal Espionage Act for revealing classified information. The government believes that Sterling was a source for revelations regarding a U.S. plot against Iran that is discussed in Risen’s 2006 book, State of War: The Secret History of the CIA and the Bush Administration. In 2011, Attorney General Eric Holder sought to compel Risen to testify in Sterling’s trial about whether Sterling was his source. Risen refused, invoking the First Amendment, and the trial judge agreed that Risen was entitled to protect his source because the government had not demonstrated a sufficient need for the evidence.
The U.S. Court of Appeals for the Fourth Circuit reversed the trial judge, finding against Risen. According to the appeals court, the Supreme Court’s Branzburg ruling categorically rejected a First Amendment privilege for reporters to invoke in order to shield their sources in criminal cases. Although subsequent cases in the Fourth Circuit and elsewhere had found a qualified reporter-source privilege in civil cases, the majority noted that Branzburg, like Sterling, was a criminal case, and that the lower courts are not at liberty to overrule the Supreme Court.
Chief Judge William Traxler dissented. He thought that Branzburg left open the possibility that courts could find a qualified reporter-source privilege, even in criminal cases, because he read a concurrence in that case, written by the late Justice Lewis Powell, as muddying the waters. Justice Powell cast the fifth and decisive vote in Branzburg, and his concurrence warned that the majority opinion should not be understood to permit the exaction of compelled testimony from a journalist whose evidence “bears only a remote and tenuous relationship” to the alleged crime. Thus, Judge Traxler thought that recognizing a qualified privilege is consistent with Branzburg, even in criminal cases. Notably, some other courts have reached the same conclusion.
Reasonable minds can differ on whether Branzburg leaves room for a limited reporter-source privilege in criminal cases, but the majority also offered an alternative ground for its decision: Even if the civil privilege were extended to criminal cases, the court said, that privilege would not benefit Risen, because the government has a vital need for his evidence. True, the majority acknowledged, the government has other, circumstantial, evidence that Sterling divulged classified information, but Risen’s testimony—if he names Sterling as his source—would be uniquely powerful as the only direct evidence against Sterling.
The Fourth Circuit Rejects the Common Law Alternative
Risen argued in the alternative that he is entitled to shield his source pursuant to a common law privilege. Federal Rule of Evidence 501prescribes that, absent contrary authority, “[t]he common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege.” Accordingly, Risen contended that even if Branzburg does not treat the First Amendment itself as giving rise to a reporter-source privilege, the courts should fashion just such a privilege.
The Fourth Circuit majority, however, rejected that argument—for two reasons. First, the appeals court thought that Rule 501 provides the courts with only limited authority to fashion new privileges. “Reason and experience,” in this view, authorize only incremental steps based on a solid foundation of precedent, and because the Branzburg Court declared that the common law traditionally did not recognize a reporter-source privilege, it would be too bold a step for an appeals court to fashion one now.
Second, the Fourth Circuit majority said that the same functional reasons that had led the Supreme Court to reject a constitutional reporter-source privilege in Branzburg also counseled against recognizing a common-law privilege in Sterling. Risen argued that without a privilege to protect sources, reporters would be unable to gather news effectively. But, the court said, that was exactly the argument that the Supreme Court had rejected in the constitutional context of Branzburg, and so the Fourth Circuit majority rejected it as a basis for a common law privilege as well.
State Law Could Have Provided a Model for Framing the New Privilege That Is at Issue
To my mind, the Fourth Circuit’s grounds for rejecting a common-law reporter-source privilege were unpersuasive. Risen did not ask the court to fashion a brand new privilege out of whole cloth. Rather, he was merely asking the court to acknowledge the near-unanimous judgment of the states as to the need for such a privilege.
When Branzburg was decided, only a few states had reporter-source privileges. Today, in sharp contrast, nearly every state has adopted a reporter-source privilege, either by statute or by judicial decision. These state reporter-source privileges underscore the case for recognizing a federal common-law privilege in two ways.
First, the state laws serve as an indication that society has broadly rejected the weighing of values that occurred in Branzburg. If that case was rooted in the perception that reporters do not need a privilege to protect sources, the near-unanimous adoption of state privileges demonstrates a contrary judgment.
Second, principles of federalism counsel in favor of a federal common-law rule that follows the state rules. As matters now stand, the absence of a federal privilege undermines the state privileges because a potential source does not know, ex ante, whether the reporter to whom he speaks will end up in a federal or state court. That uncertainty, in turn, greatly limits the ability of a reporter to give his or her sources the assurances that state laws seek to foster.
The Fourth Circuit did not consider federalism as a ground for a federal common-law reporter-source privilege, but it did consider—and discount—the fact that state law now overwhelmingly rejects the Branzburg approach. Still, the court said, there is no consensus, because state law varies greatly with respect to the circumstances that trigger the protection.
That is a fair point. States have adopted different thresholds for overcoming the privilege, and even different definitions of who counts as a reporter permitted to invoke the privilege.
Moreover, some of the privileges at issue have uncertain application. For example, consider New York’s privilege, which protects “professional journalists,” a term defined to cover people who “for gain or livelihood,” work as reporters for newspapers and other periodicals, but not book authors. If federal law were to mirror the New York statutory text, would it cover Risen? Seemingly yes, because he is a reporter for the New York Times. Yet perhaps not in the circumstances of the Sterling case because the Times, after consultation with the State Department and CIA, did not run Risen’s story, but Risen later published it in a book.
Citing similar analysis by the Supreme Court in Branzburg, the Fourth Circuit in Sterling concluded that the large number of implementation issues makes the adoption of any privilege a matter best left to legislative judgment. However, any common-law rule that the federal courts fashion would be subject to revision, or even to complete overriding, by Congress. The Court in Branzburg may have been right that judges are not well-suited to selecting a complex set of privilege rules to govern for all time, but that concern is much less salient when the question is merely how to fashion a common law doctrine that will only serve as a default rule, rather than a constitutional doctrine that cannot be changed by ordinary legislation.
The Need for Action by the Elected Branches
Ideally, Congress would enact a federal shield law, whether in response to a future court ruling that adopts a common-law shield as a default rule or, better yet, without waiting for such a ruling. In the past, repeated efforts to enact a federal shield law have failed, but the latest such attempt—a Senate bill co-sponsored by New York Democrat Chuck Schumer and South Carolina Republican Lindsey Graham—may have a better chance.
Why? The answer is mostly politics. Traditionally, Democrats have been more favorably inclined towards enacting a reporter shield law, but now many Republicans are coming around to the same position. By supporting a shield law, Republicans can capitalize on recent revelations of the extent to which the Obama Administration has monitored the press as a means of addressing leaks.
Meanwhile, the Administration itself sees support for a shield law as a means by which it can stop the bleeding. A recent review of Justice Department guidelines for seeking information from reporters expresses support for a shield law. Although the Obama Administration had previously expressed the same view, there now may be some real momentum towards enactment.
To be sure, the shield proposed in the Schumer/Graham bill is porous. In a prosecution like Sterling, the privilege could be overcome if the government could show a threat to national security by a preponderance of the evidence and, in addition, courts would be required to defer to a federal executive assessment of threat or harm. The protection for journalists could also be watered down even further as the bill moves through Congress.
Still, enactment of even a diluted version of the Schumer/Graham bill would substantially increase protection for the freedom of the press. In the meantime, the Obama Administration has a ready means of showing that it takes press freedom seriously. In addition to implementing the changes that are set forth in the Justice Department report, the Administration could take unilateral steps to comply with the journalist protections that it thinks would be contained in any sensible shield law.