With a plot that sounds like a Jason Bourne movie, on June 2 the Supreme Court declined to review Risen v. United States, a case raising an important question on First Amendment protections for the media but in a context that understandably left conservatives concerned over national security.
Jeffrey Sterling is a former CIA agent indicted for violating the Espionage Act, allegedly for leaking classified material on Iran’s nuclear program to the New York Times’ James Risen. Sterling had been part of a unit dogging Iran until he was reassigned in 2000 for substandard performance.
Sterling pursued an equal-employment claim internally at the CIA, claiming he was the victim of racial discrimination because he’s black. When that office ruled his claim was unfounded, he sued. That case was eventually dismissed on appeal in 2004 when the Bush administration invoked the state secrets doctrine, asserting that openly discussing the operations in question would endanger national security.
In the meantime, on November 4, 2001, NYT published an article by Risen entitled, “Secret CIA Site in New York was Destroyed on Sept. 11,” citing a “former agency official.” Risen then wrote in 2002 about Sterling’s firing and said Sterling provided him with copies of Sterling’s performance reviews.
Sterling later sued the CIA again, this time for not letting him publish certain classified materials in a memoir he had written. Sterling later told Senate Select Intelligence Committee staff that he was considering going to the press. (It is legal for intelligence officers to discuss classified matters with House and Senate Intelligence staffers who have the appropriate security clearance.)
In 2003, Risen informed the CIA and the National Security Council that he had classified intelligence on Iran’s program that he intended to publish at NYT. National Security Advisor Condoleezza Rice and CIA Director George Tenet personally met with Risen and NYT‘s Washington Bureau chief to express how damaging such an article would be to America’s interests and endanger the lives of some CIA informants. At their urging, NYT decided to spike the story.
A trail then developed of phone calls between Sterling and NYT, which Sterling would later deny. The CIA also uncovered 27 emails between Sterling and Risen. In 2006, Risen published his book State of War, which contained the same classified information that NYT had decided not to publish in 2003. Certain details directly linked the information to Sterling.
On Dec. 22, 2010, Sterling was indicted by a federal grand jury on six felony counts, including mail fraud and obstruction of justice. On May 23, 2011, Attorney General Eric Holder authorized a subpoena directed at Risen, specifically seeking to compel Risen to confirm Sterling was his source.
Risen’s lawyer tried to quash the subpoena on the grounds that as a reporter he was protected from disclosing his confidential sources. He claimed that he enjoyed this protection either under the Free Press Clause of the First Amendment or under federal common law.
Although the U.S. District Court for the Eastern District of Virginia agreed in part with Risen, the U.S. Court of Appeals for the Fourth Circuit reversed. In a 2 to 1 opinion in U.S. v. Sterling written by Chief Judge William Traxler, the Fourth Circuit held, “There is no First Amendment testimonial privilege… that protects a reporter from being compelled to testify… about criminal conduct that the reporter personally witnessed or participated in,” regardless of whether “the reporter promised confidentiality to his source.”
Traxler noted that in its 1972 Branzburg v. Hayes case, the Supreme Court “in no uncertain terms rejected the existence of such a privilege.” After discussing Branzburg, Traxler found:
The [Supreme] Court declined to treat reporters differently from all other citizens who are compelled to give evidence of criminal activity, and refused to require a compelling interest or other special showing simply because it is a reporter who is in possession of the evidence.
But the Supreme Court was divided in Branzburg, with four of the Court’s nine justices arguing reporters do have an additional constitutional right under the First Amendment. One of the dissenters, Justice William Douglas, wrote that the right was so absolute that a reporter need not even appear before a grand jury to assert the right in person. And the fifth vote for ruling there is no general media privilege seemed to leave the door open for a case-by-case flexible approach.
Risen v. United States raised important questions, and some lawyers–especially liberals–were hoping that the current membership of the Supreme Court would revisit the issue. In a time when the Obama administration is tracking journalists–such as Fox News Channel’s James Rosen (similar spelling to Risen)–many media outlets are apprehensive about government pursuit of members of the press.
The Supreme Court has, through various cases, spoken of the essential role that freedom of the press plays to keep the voters informed and thus government in check. The Court has noted that free speech and other First Amendment rights also serve to provide bedrock protections for the media.
It is possible that the Court chose not to step into this fray because of uncertainty on how to define the media. National news networks like Fox News Channel are certainly media, as are national radio shows like Sean Hannity or Lars Larson. And newspapers like the Wall Street Journal cannot be questioned.
But where does the Constitution draw the line? At some point, a person or group crosses the line to instead be a public-interest organization, perhaps one that exists to inform the public but does not meet the definition of being part of the media for purposes of the Free Press Clause.
More likely, though, the justices declined to take it because recognizing special media protections here would highlight how such a right could be used to undermine national security. The justices either don’t think such a separate constitutional right exists, or at least did not want to explore it under these circumstances.
Modern organizations sometimes face such scrutiny. SCOTUSblog is currently embroiled in such a dispute, as it has lost its congressional press credentials over disputes of whether it is journalistically independent from an associated law firm with whom it shares staff and has adjacent office space, among other issues.
One might think the justices might have sidestepped that question in Risen, because the implicated media outlet is the New York Times, which the Court could hold is a media outlet without developing a comprehensive definition. Then again, in this precise situation, a NYT reporter was publishing a book independently of his newspaper, so there could have been questions about whether a reporter carries this additional protection around with him to other ventures.
For whichever reason, the Supreme Court chose not to delve into this issue at the present time. The original meaning of the First Amendment did not include empowering the press to aid and abet those who jeopardized America’s foreign affairs or national security, and the justices passed on this case involving someone who violated his oath to safeguard sensitive intelligence information.
Time will tell whether the same rights all Americans already enjoy under the First Amendment prove sufficient to enable the media to do its job. Hopefully the Supreme Court will decide such questions in a way that does not compromise the efforts of those charged with keeping America safe in a dangerous world.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.