New York Times Building. (Photo: Rick Kopstein/ALM.)
The U.S. Supreme Court on Monday declined to hear the case of Pulitzer Prize-winning journalist James Risen, who sought First Amendment protection from being forced to reveal his confidential sources in a criminal proceeding.
Without comment, the justices let stand a ruling against the New York Times reporter by the U.S. Court of Appeals for the Fourth Circuit. A divided panel ruled last July that reporters do not enjoy a privilege from testifying under the First Amendment or criminal law.
A grand jury subpoenaed Risen in 2008 as part of an investigation into who leaked information about a botched Central Intelligence Agency operation involving Iran’s nuclear program. Risen reported on the episode in his 2006 book State of War: The Secret History of the CIA and the Bush Administration.
Lawyers for Risen asserted that the U.S. Court of Appeals for the Fourth Circuit decision exposed a split among circuits because six other federal appeals courts have ruled in favor of a reporter’s privilege.
“In an area of law where predictability is of paramount importance, the current state of the law is confused,” wrote Joel Kurtzberg of Cahill Gordon & Reindel on behalf of Risen.
But the court’s denial of review was not a surprise, given that the high court has not taken up a press-freedom case involving journalists since 2001. In the 1972 case Branzburg v. Hayes, the court ruled against a reporter’s privilege, but ambiguities in the decision have left the issue in limbo. Meanwhile, 49 states and the District of Columbia have enacted laws protecting a reporter’s privilege.
What happens next for Risen is uncertain. Last week, in a meeting with media organizations to discuss government handling of press subpoenas, Attorney General Eric Holder Jr. was quoted as saying: “As long as I’m attorney general, no reporter who is doing his job is going to go to jail.” He was apparently not speaking about any specific case, however.
Contact Tony Mauro at firstname.lastname@example.org. On Twitter: @Tonymauro.