The US Supreme Court has declined to review a lower court order directing New York Times journalist James Risen to testify about his confidential sources for reporting on secret US efforts to undermine Iran’s nuclear program.
Be thankful that the Court took a pass.
Although the First Amendment Coalition joined a legal brief urging the Court to hear Risen’s appeal, I confess to having signed on with misgivings (and fingers crossed). Not because I don’t support Risen, but because I had little hope the Court would use his case to create broad new legal protections for journalists and their sources.
The more likely outcome, I feared, was that the Court would reject Risen’s arguments and, in the process, sweep away the few remaining filaments of legal support, spun from ambiguities in prior Supreme Court opinions, for journalists’ protection of their confidential sources.
Even though he has run out of legal options, Risen may be spared judicial sanctions: contempt, fines and jail. Attorney General Eric Holder, asked about Risen’s case, commented recently: “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.”
While the remark is slightly ambiguous—Risen, technically, is just a witness in the prosecution of CIA employee Jeffrey Sterling, Risen’s alleged source—Holder appeared to be promising that federal prosecutors would either settle the Sterling case or try Sterling without Risen’s testimony.
The Supreme Court’s denial of Risen’s petition has also boosted the prospects for legislation creating a federal Shield Law. The Court’s inaction puts pressure on Congress to act, particularly following revelations last year about overreaching in leak investigations involving phone records for reporters at AP and Fox News. Although the Justice Department has tightened its internal policies to curb future abuses, the Department took a hard line in its Supreme Court brief in the Risen case.
The government, opposing Risen’s request for review, argued against the Court’s recognition of protection for journalists’ sources (even while the Justice Department has supported the Shield Law bill). The administration’s legal brief rejected not only a first amendment-based privilege, but also a “qualified” privilege based on federal “common law” (similar to the qualified federal privilege for doctors and therapists). The message was clear: Congress, not the Supreme Court, is the appropriate source for legal protections of journalists’ confidential sources.–PETER SCHEER
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But with all due respect, do you really think we can hope away further judicial challenges to First Amendment protections until the chief justice and Scalia retire? Better we have it out, now, while the Democrats control the Senate and the White House!
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