Tuesday, January 14, 2014
The question of whether the First Amendment protects the right of the press to conceal the identity of anonymous sources could return to the Supreme Court. The title of this post comes from this National Law Journal article, which explains:
Lawyers for a New York Times reporter tangled up in a fight with federal prosecutors urged the U.S. Supreme Court on Monday to undo an appeals court ruling that would force his testimony in a CIA leak prosecution.
A divided U.S. Court of Appeals for the Fourth Circuit in July overturned a trial judge's ruling that would have allowed James Risen to keep secret the source of information in his book about the George W. Bush administration and intelligence agencies. Risen's book, "State of War: The Secret History of the CIA and the Bush Administration," included details about the National Security Agency's warrantless wiretapping program.
Prosecutors want Risen to testify in the government's case against former CIA employee Jeffrey Sterling in federal district court in Alexandria, Va. Sterling is accused of leaking information to Risen about Iran's nuclear weapons program. He was arrested in January 2011 on charges that included disclosure of national defense information and obstruction of justice.
U.S. District Judge Leonie Brinkema determined that to "require a reporter to violate his confidentiality agreement with his source under these facts would essentially destroy the reporter's privilege." Brinkema quashed the trial subpoena.
Chief Judge William Traxler of the Fourth Circuit concluded, however, that journalists do not enjoy a First Amendment privilege "that protects reporters from being compelled to testify by the prosecution or defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in." Delivering a win to the U.S. Department of Justice, the court voided Brinkema's decision.