Supreme Ct. rules against Freedom of the Press

June 2, 2014

The U.S. Supreme Court on Monday "effectively sided with the government" against embattled New York Times journalist James Risen by rejected his appeal of a lower court ruling challenging the Justice Department's demand that he reveal a confidential source.

"By going after Risen, the Obama administration has done more damage to reporter's privilege than any other case in forty years." —Trevor Timm, Freedom of the Press Foundation

The ruling means that Risen has come to the end of the appeals process in his case and must now either testify in the trial of former CIA officer Jeffrey Sterling or face possible jail time. The Department of Justice believes that Sterling is Risen's confidential source, but Risen has consistently refused to confirm that belief, citing press freedoms and his right as a journalist to protect confidential sources. If he refuses to testify—as he has repeatedly said he will—he could be placed in contempt of court and face jail time until he complies.

As the Times itself reports:

The court’s one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said is an imperative to secure evidence in a national security prosecution and what journalists said is an intolerable infringement of press freedom.

The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book “State of War.” Prosecutors say they need Mr. Risen’s testimony to prove that the source was Jeffrey Sterling, a former Central Intelligence Agency official.

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Mr. Risen to comply with the subpoena. Mr. Risen has said he will refuse.

The Obama administration has sent mixed signals in the case and on the subject of press freedom in general. In its Supreme Court brief in the case, Risen v. United States, No. 13-1009, it told the justices that “reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources.”

Fellow journalist Glenn Greenwald expressed his frustration with the court's decision, by tweeting:
"Glenn Greenwald @ggreenwald

Congrats to the Obama DOJ for its latest victory in its attacks on the news-gathering process"

Trevor Timm, co-founder and executive director of the Freedom of the Press Foundation, said in a statement:

This is the latest victory of the Obama administration in their crackdown on sources, and in turn, investigative journalism. As the New York Times again reminded us today, they have "pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined."

Make no mistake, this case is a direct attack on the press. The Justice Department has recently tightened its "guidelines" for subpoenaing reporters (which have no enforcement mechanism) and the Obama administration claims it supports a tepid journalist shield law, but this was the case where they could have shown they meant what they said about protecting journalists' rights. Instead, they argued to the court that reporter's privilege does not exist all.

By going after Risen, the Obama administration has done more damage to reporter's privilege than any other case in forty years, including the Valerie Plame leak investigation that ensnared Judy Miller during the Bush administration. The Fourth Circuit is where many national security reporters live and work, and by eviscerating the privilege there, the government has made national security reporting that much harder in an age where there has already been an explosion in use on surveillance to root out sources of journalists.

Seemingly undeterred by the court's decision, Risen himself, according to the Washington Post's Erik Wemple, has vowed to continue to fight for his right to protect sources. Wemple tweeted:

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