An egregious federal appeals court ruling has dealt a major setback to press freedoms, by requiring the author of a 2006 book to testify in the criminal trial of a former Central Intelligence Agency official who is charged with leaking classified information.
The ruling and the Justice Department’s misplaced zeal in subpoenaing James Risen, the author and a reporter for the New York Times, carry costs for journalism and government accountability that should alarm all Americans.
A federal district judge, Leonie Brinkema, was mindful of those costs two years ago. She ruled that a qualified reporters’ privilege to protect confidential sources, grounded in the First Amendment, applies in criminal cases. She declined to compel Mr. Risen to reveal a confidential source in the trial of Jeffrey Sterling, a former CIA employee.
Last week’s 2-to-1 ruling by the U.S. Court of Appeals for the Fourth Circuit overturned Judge Brinkema’s sound decision. It relied on an overly sweeping reading of a murky 41-year-old Supreme Court decision that has been rejected by other federal appellate courts. The ruling also failed to respect the nearly universal consensus among states that there is a common-law privilege for protection of reporters’ confidential sources.
The third member of the panel, Judge Roger Gregory, got it right, calling his colleagues’ decision a threat to investigative journalism. “Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” Judge Gregory wrote in a forceful dissent.
The precedent set here is especially troubling because the Fourth Circuit, where the ruling applies, includes Maryland and Virginia, which are home to most national security agencies. If it stands, it could chill investigative reporting, especially about national-security issues.
It was dismaying that the Justice Department issued a statement approving of the court’s wrongheaded legal conclusion, barely a week after Attorney General Eric Holder announced new guidelines that are supposedly designed to protect the news media better from federal investigators in leak cases.
But the department also said it is “examining the next steps in the prosecution of this case.” That should include withdrawing its demand that Mr. Risen testify about his sources.
This issue tests the new guidelines and their promise not to threaten journalists with jail for doing their jobs, except in “extraordinary” circumstances. If he has any intention to live up to that pledge, Mr. Holder should reopen the question of Mr. Risen’s subpoena.