Risen Reporter's Shield Case Gets En Banc Denial, With Dissent

By William Peacock, Esq. on October 17, 2013 | Last updated on March 21, 2019

After the decision, and the amicus briefs, comes the expected denial. Next stop SCOTUS?

James Risen had a lot of inside information about the CIA, which he revealed in his book State of War. We're all pretty certain that the information came from Jeffrey Sterling, a disgruntled former agent, as he's the common link to a lot of the information about a variety of operations. The government, however, contends that only Risen can provide a direct link to the leaks.

The issue in the case is pretty fundamental: does the Supreme Court's holding in Branzburg v. Hayes really prohibit reporters from invoking the First Amendment to refuse to testify about their sources to a grand jury (and in other legal proceedings)?

We think the case's holding was pretty clear, as the court did state that it could not "seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof ..."

Then again, Judge Gregory, who dissented from the panel opinion, and now dissents from the en banc rehearing denial, argues the heavily-fractured court released multiple opinions that day, including a concurrence by Justice Powell, which has introduced some ambiguity into the equation.

He notes that Powell's concurrence suggested a balancing test, which "permits courts to employ, on a case-by-case basis, a balancing test to determine whether the information sought from the reporter is relevant, whether it may be obtained by other means, and whether there is a compelling interest in the information."

This version of the "reporter's shield" has been adopted by the Fourth Circuit in civil cases and if Judge Gregory's view prevailed, would be the rule for criminal cases as well. The majority's view, which only offers a shield when the government acts in bad faith, does little to protect the independent press.

Gregory notes that forty-nine of the fifty states, plus the District of Columbia, all have some sort of reporter's privilege. Will the federal system be the next to adopt such a law? Absent action by Congress (ha!), the most likely route is through an appeal of this case to the Supreme Court. And as we all know, a successful appeal and SCOTUS certiorari grant, are not likely at all.

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