^ James Risen : testify or go to jail, says the Appeals Court

We awoke today to find that the Federal 4th Circuit Court of Appeals has overturned a District Court decision that freed New York times reporter James Risen from having to testify in a criminal prosecution by the Justice Department. The Appeals Court has just decided, 2 to 1, that he DOES have to testify.

Risen can, of course, refuse to testify — and go to jail. What a choice.

The case at hand is a trial involving leaked C. I. A. data. shades of Ed Snowden and the “secret’ FISA Court. We know what the Justice department did with that one. But Ed Snowden is not a reporter, and his disclosures are not protected Free Speech. 

The District Court had opined, strongly, that there is, within the First Amendment, a “reporter’s privilege,” by which reporters need not disclose their sources even in the context of a Federal criminal prosecution. The District court argued that to not grant reporters at least some area of “privilege” would crimp free speech itself. For if sources know that the reporter they talk to will have to disclose them, those sources might decide not to talk at all. And thus a story that the reporter has a First Amendment right to publish won’t get published notwithstanding.

The District Court opined that safeguarding the right to publish trumped any governmental interest in having story sources disclosed. We agree with the District Court. We strongly disagree with the Appeals Court’s reversal.

The Risen case is hardly the first one in which the Federal government has forced reporters into jail rather than disclose a source in a criminal prosecution context. The most infamous recent occasion was that of New York Times reporter Judith Miller, who chose jail in 2005 rather than reveal who had disclosed to her that Valerie Plame was a CIA operative. Not until her source voluntarily came forward was Miller released.

All such Federal court deecisions begin with the case of Branzburg v. Hayes, a 5 to 4, 1972 Supreme Court decision (408 U.S. 665) involving a reporter’s refusal to testify before a grand jury. In Branzburg the High Court said :

“The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.”

Ominous it was that the 1972 High Court chose to see the reporter’s refusal to reveal sources as “concealing facts.” The reporter who safeguards a source is not “concealing facts.” Those facts remain factual and can be found by other means. The reporter not revealing his source is, rather, protecting the publishing a story that the public has an interest in — a right to know. If that isn’t a First Amendment interest, what is ?

The Appeals Court now says, “Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony.” Is this so ? Is it “clear” ? Is Risen “without dispute the only witness who can offer this critical testimony” ? It is not “clrear’ at all; the source can also testify. And why isn’t anything said to Risen by his source hearsay when testified to by Risen ?

Judge Roger Gregory dissented. His dissent expresses our view too : “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,” Gregory wrote. “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.”

“The free flow of information.” Indeed. In an era when an Ed Snowden can be pilloried and chased from airport to airport, what is left of “the free flow of information” ? Only that information that the government doesn’t mind us knowing. But the First Amendment was established to protect ALL information, especially and chiefly such information as the powers do not want us to know.

Most often THAT is the information that really MATTERS.

—– The Editors / Here and Sphere