The Supreme Court declined to take up a major press freedom case concerning New York Times reporter and author James Risen's fight to quash a subpoena for his testimony about confidential sources.
The government served a subpoena on Risen in May 2011 seeking his testimony in a case against former CIA Agent Jeffrey Sterling. Sterling has been indicted for divulging classified information in violation of the Espionage Act. The government believes Sterling was a source for a chapter of Risen's 2006 book, "State of War: The Secret History of the CIA and the Bush Administration."
At issue before the court was whether there was a First Amendment or federal common-law privilege that protected Risen from having to testify about the identity of his sources. While a district court ruled that Risen had a qualified First Amendment reporter's privilege, a divided three-judge panel of a federal appeals court reversed that decision.
The appeals court decision will now stand and the issue will go back to the lower court.
If Risen ultimately is forced to testify about the identity of confidential sources, he has said he will go to jail. It was unclear, however, whether the government would seek jail time for Risen.
Last week, Attorney General Eric Holder was asked about the Risen case and, while he declined to discuss the tactics of the case or the status of the legal proceedings, he said, "As long as I am attorney general, no reporter is going to go to jail for doing their job."
Holder made the comments during the first meeting of the attorney general's media dialogue group. Holder formed the group last year in the wake of criticism about DOJ's secret subpoena for AP phone records and the DOJ's accusing Fox reporter James Rosen of being a "criminal co-conspirator" in a leak case. The group consists of seven journalists and three First Amendment lawyers.
In its opinion, the appeals court cited a 42-year-old Supreme Court case called Branzburg v. Hayes and said that the Supreme Court "declined to treat reporters differently from all other citizens who are compelled to give evidence of criminal activity."
Lawyers for Risen argued that the Branzburg opinion is "confusing" and "enigmatic" and urged the justices to resolve the existence and scope of a reporter's privilege in criminal trials.
In court papers, Risen lawyer Joel Kurtzberg wrote, "There is an ongoing and irreconcilable disagreement in the lower courts that is well worthy of the plenary review by this [Supreme] Court."
In his brief on behalf of the government, Solicitor General Donald B. Verrilli urged the court to allow the appeals court opinion to stand. In Branzburg, he said, the Supreme Court "rejected claims of privilege" by reporters who had been called to testify before a grand jury about criminal conduct involving confidential sources. Furthermore, he added, Branzburg "expressly left the door open" for Congress to determine whether a federal statutory privilege is necessary.
In the brief, Verrilli said, "With the administration's support" Congress is currently considering legislation to address the "unique concerns raised in cases like this one, involving the disclosure of national defense information to journalists."
In an email earlier this year to Margaret Sullivan, the New York Times public editor, Risen was deeply critical of the Obama administration.
"I am appealing to the Supreme Court," Risen wrote, "because it is too dangerous to allow the government to conduct national security policy completely in the dark."