The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources. The decision can be viewed here.
In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002. During his tenure, he provided classified information to a NT Times reporter Risen. In 2001, Risen published two articles based on classified information provided to him by Sterling. After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.
Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information. NY Times Reporter met with senior administration officials to discuss the impact of the story. The recommendation was to not publish, which the NY Times agreed to. Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.
As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source. Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.
The Circuit Court of Appeals disagreed. The court held that Risen did not have a reporter’s privilege. The Circuit Court of Appeals relied heavily on Supreme Court cases.
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege. In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”
Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings. The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.
The Circuit Court of Appeals noted why this line is so important. In criminal cases, there is a fundamental and comprehensive need for every man’s evidence. For this reason, any shield to information has to be narrowly construed. In a civil matter, however, the need for information does not share the same urgency or significance.
For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information. In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.