Friday’s federal appeals court decision ordering New York Times reporter James Risen to testify in the trial of a CIA operative charged with leaking classified information to him is as shocking as it is chilling.
The panel was divided. In an impassioned dissent, Judge Roger Gregory wrote:
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”
Gregory said if the ruling stands, it will be a “serious threat” to investigative journalism. More like a death knell, we’d say. Who would talk to reporters in confidence?
By contrast, the same week Attorney General Eric Holder Jr. proposed to President Barack Obama significant new restrictions on the Justice Department’s seizure of journalists’ phone records and emails. Even better, Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., are proposing to incorporate Holder’s new executive policies as part of their Free Flow of Information Act of 2013 — the latest attempt at a national shield law for journalists.
The law would give news gatherers the legal protection they enjoy in California and most other states, but not from the federal government. We can only hope it’s in time to help Risen, who says he will go to jail rather than testify if the Supreme Court upholds Friday’s ruling.
The Obama administration’s born-again belief in a free press was in response to a public backlash. Revelations that the FBI had secretly seized phone records and emails from reporters at The Associated Press and Fox News infuriated journalists, Congress and the public, prompting Obama to ask Holder for a policy review. The new policy would revive former practices of notifying media outlets when communications are being sought and would bar the use of search warrants to seize a reporter’s records unless the reporter is under investigation for something other than his or her news gathering.
That change stems from actions against Fox News reporter James Rosen, who in 2009 reported information that came from inside North Korea’s government. In gathering evidence against a former State Department employee, the FBI tried to seize Rosen’s communications by claiming he could have violated the Espionage Act by receiving the leaked information. Such actions have had a chilling effect on news sources and whistle-blowers.
The senators’ bill would not give absolute privilege to journalists; it would require the government to convince a court that it needed the information, and it includes exceptions for, as an example, preventing an act of terrorism. Congress should pass this national shield law in this term. And it should make sure the provisions cover Risen’s case.