4th Cir. Hears Reporter's Privilege Arguments in James Risen Case

By Robyn Hagan Cain on May 18, 2012 | Last updated on March 21, 2019

Friday, federal prosecutors asked the Fourth Circuit Court of Appeals to reverse a pretrial ruling limiting the reporter’s privilege in a CIA leak case, ABC News reports.

While the scope of the reporter’s privilege is not explicitly defined, the Supreme Court ruled in Branzburg v. Hayes that reporters cannot invoke the First Amendment as justification for refusing to testify before a grand jury. The government claims that, under Branzburg, a reporter must testify about a crime that he witnesses, even if the crime is a source spilling state secrets to the reporter.

New York Times reporter James Risen was subpoenaed last year to testify about sources for his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. The government believes that former CIA officer Jeffrey Sterling leaked information to Risen, according to The Times.

The government is appealing U.S. District Judge Leonie Brinkema's July 2011 decision that Risen did not have identify his sources in the trial. In addition to arguing that the government's appeal is premature and that his testimony was not critical in the case against Sterling, Risen is asking the Fourth Circuit to uphold the basic principle of reporter's privilege, reports Politico.

The media is siding with Risen; more than two dozen media outlets -- including the Associated Press, Bloomberg, Hearst, McClatchy, Newsweek, The New York Daily News, The New York Times, Reuters, Scripps-Howard, Time, the Tribune Company, The Wall Street Journal and The Washington Post -- signed on to the amicus brief, arguing that if the Fourth Circuit Court of Appealsadopts the Government's unprecedented position - that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials - their ability to report on matters of substantial public concern will be "significantly impaired."

(Disclosure: Thomson Reuters owns both Reuters and FindLaw.)

The three-judge panel hearing the appeal consists of Judges Albert Diaz, Roger Gregory, and William Traxler. The Fourth Circuit Court of Appeals should issue a decision in the case before the end of the year.

Related Resources:

Fourth Circuit Questions Whether Government Can Force Reporter to Testify (Lippmann Would Roll)
NYT's James Risen Claims Reporter's Privilege in CIA Leak Appeal (FindLaw's Fourth Circuit Blog)
NY Shield Law Keeps WSJ Reporter Out of Court (FindLaw's Second Circuit Blog)