In early June, the U.S. Supreme Court denied a petition for review from James Risen. Now the Pulitzer Prize winner and former New York Times reporter is facing jail time for refusing to name a source.
In his 2006 book “State of War,” Risen wrote about Iran’s nuclear program. Some of his information, the DOJ said, came from a leaker the feds identified as Jeffrey Sterling, a former CIA official. The DOJ said it needed Risen’s testimony to prosecute Sterling.
For six years and despite a couple of DOJ subpoenas, Risen has refused to testify, claiming a reporter’s privilege against revealing his source.
But in July 2013, the U.S. Court of Appeals for the Fourth Circuit in Virginia ordered him to comply with the subpoenas.
Risen — who won the Pulitzer Prize for his reporting about government surveillance — then asked the Supreme Court for help. The Supremes turned him down in a one-sentence order.
By letting the Fourth Circuit decision stand, the Supreme Court decided that for Risen in particular and journalists in general, there’s no reporter’s privilege against naming sources when compelled by a government subpoena.
Since 1791, the first bill in our Bill of Rights has said:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Free speech and a free press have always had some reasonable limits on them. You can’t yell “Fire!” in a crowded movie theater, defame others, or publish porn wherever you want to. But generally the press has been free to report what the government does, and reporters who learn the government’s secrets from whistleblowers have generally been able to protect their sources.
But for Risen, 59, the First Amendment didn’t work. He said he now faces two choices, “Give up everything I believe in — or go to jail.”
On Monday, 14 Pulitzer Prize-winning journalists issued statements in defense of Risen and condemning the government’s attacks on press freedom.
* * *
Risen’s petition to the Supreme Court was supported by a friend-of-the-court brief from ABC, the AP, CBS, CNN, Dow Jones, Bloomberg, NBC Universal, Cox Media, Scripts, Fox News, Gannett, Hearst, McClatchy, NPR, the National Association of Broadcasters, the New York Times, the Newsweek Daily Beast, Reuters, Time, the Washington Post, and WNET, among others.
In their brief, the amici said,
[We] are publishers, broadcasters, cable networks and associations of journalists and news media entities. [Our] employees and members gather information about matters of public concern and report it to their fellow citizens. To perform these tasks effectively, amici are obliged from time to time to secure information from sources who will provide it only pursuant to a promise of confidentiality. The Fourth Circuit’s decision — that neither the First Amendment nor federal common law protects that promise in a criminal proceeding absent evidence of government bad faith — will have tangible, adverse consequences for the ability of amici to keep their readers, viewers and listeners fully informed about the conduct of public affairs.
Risen said in his petition to the Supreme Court that his “book exposes instances of excessive government secrecy, incompetence, and mismanagement in the U.S. intelligence apparatus, including details about the National Security Agency’s warrantless wiretapping program.”
That sounds like information the public should have.
Too bad the Supreme Court ducked the case and left Risen, and every other journalist in America, outside the protections that have been guaranteed by the First Amendment since George Washington was president.
Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.