Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
In Progress Contracts Expression
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The United States Court of Appeals for the Fourth Circuit held that a journalist and author could be forced to testify at a former CIA operative’s treason trial, even if the journalist promised his sources that they would never be revealed. The case concerned Sterling who was indicted by a grand jury for the unauthorized retention and disclosure of national defense information, a violation of the Espionage Act, based on information which was published in a book on the CIA written by Risen. Citing Branzburg, the Court found that Risen’s testimony would be relevant to the case, that the testimony could not be obtained by alternative means, and that there was a compelling interest in the testimony in order to prosecute Sterling. The Court next held Risen had no common-law privilege that would prevent him from testifying at Sterling’s trial. The court rejected the argument that the lack of First Amendment or common law reporter’s privilege would “chill” press freedoms, as evidenced by the flourishing of the press since the nation’s founding. While some states may create a privilege for the press in state court actions, the Fourth Circuit reiterated that such privileges do not exist on the federal level.
Jeffrey Sterling was hired by the United States Central Intelligence Agency (CIA) as a “case officer” in 1993; soon thereafter he was granted top security clearance. When he was granted clearance he signed agreements stating that he would not disclose national secrets and that doing so would be a criminal offense.
In 1998, Sterling was assigned to a program with the mission of impeding Iran’s efforts to acquire or develop nuclear weapons. He also served as the supervisor and case officer for a covert asset in Iran. In May 2000, Sterling was reassigned from that project. Shortly after his assignment, the CIA informed Sterling that he was not meeting performance targets; a EEOC complaint alleging racial discrimination was dismissed. On January 31, 2002, Sterling was officially terminated, and during exit interviews, he refused to sign paperwork stating that he would not disclose state secrets. A subsequent civil lawsuit, again alleging racial discrimination, was dismissed in March 2004.
Before this dismissal, Sterling submitted drafts of his memoirs to the CIA’s Publications Review Board for close editing. Unhappy with the edits which he received a year after submission, Sterling told the CIA that he would be “coming at [them] . . . with everything at his disposal.”
Between February 27 and March 29, 2003, phone records indicated that Sterling spoke with James Risen, a journalist, at least seven times; the two also exchanged e-mails. After one article Risen drafted was not published by the New York Times due to state security reasons, Risen published a book, in January 2006, entitled State of War: The Secret History of the CIA and the Bush Administration. It described, amongst many other revelations, Sterling’s covert asset and two meetings at which Sterling was the only common attendee.
On December 22, 2010, Sterling was indicted by a grand jury for the unauthorized retention and disclosure of national defense information, a violation of 18 U.S.C. § 793(d) and (e), commonly known as the Espionage Act. The government issued a subpoena, which was personally authorized by Eric Holder, seeking the testimony of Risen at trial. Risen filed a motion to quash and a protective order, arguing that he was entitled to a First Amendment and federal common law reporter’s privilege. The district court granted in part and denied in part the motion, holding that while Risen could be forced to testify, the elicited testimony could only be about the general “accuracy” of Risen’s journalism. Any questions at trial regarding Risen’s sources would be prohibited. The government appealed the trial court’s order and the matter arrived before a panel of the United States Court of Appeals for the Fourth Circuit.
Because the government’s appeal involved three substantial issues, the Fourth Circuit divided its opinion up into three sections; Chief Judge Trexler drafted the opinion on the first section, which analyzed whether Risen was entitled to a qualified reporter’s privilege under either the First Amendment or the common law.
In a blistering reversal, the Fourth Circuit stated in no uncertain terms that a reporter’s privilege has never existed under federal law and that Risen would be forced to testify, as any other citizen would, about his sources for the book’s content, which impliedly would impugn Sterling as the discloser of national defense secrets.
Turning to Risen’s constitutional argument – that is, that the First Amendment grants reporters a privilege not to testify – the court cited a United States Supreme Court decision, Branzburg v. Hayes, 408 U.S. 665 (1971) and quoted that case at length. The express holding of Branzburg was that reporters who observed criminal activity committed by members of the Black Panther Party could not use the First Amendment as a shield when served with a subpoena forcing them to testify in a federal trial. The only exception to this rule – an exception that would apply to any other subpoena, notably – would be if the subpeonas were issued in bad faith. The court also cited an opinion involving Judith Miller’s invocation of a First Amendment privilege, in which the court held that it could not “seriously entertain” a reporter’s right to conceal criminal conduct of a source.
The lower court also erred when it granted Risen’s motion based upon the three-part test in LaRouche v. Nat’l Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986). Simply put, the LaRouche test only applied to civil proceedings, while the matter proceeding against Sterling was a criminal one. Thus, the lower court simply applied the wrong “test” in determining that Risen had a privilege not to testify. However, the court went on to write that even if the case had been properly applied, the government still had easily proven that it met the elements of the test: That Risen’s testimony would be relevant to the case, that the testimony could not be obtained by alternative means, and that there was a compelling interest in the testimony in order to prosecute Sterling.
The Fourth Circuit next held Risen had no common law privilege that would prevent him from testifying at Sterling’s trial. While, under Federal Rule of Evidence 501, common law privileges are not, in fact, enumerated, the “list of nine” such privileges – such as attorney-client, psychotherapist-patient, and spousal – has never included a reporter’s privilege. Much like the First Amendment argument, the Supreme Court in Branzburg also rejected the idea that the common law has protected reporters from testifying.
The court noted that the lack of such First Amendment or common law reporter’s privilege would not, as many have claimed or feared, “chill” press freedoms. Since this country’s founding, the court reasoned, the press has “flourished” and it was not until 1958 that a litigant even raised the idea of a reporter’s privilege. Thus, while some states may create a privilege for the press in state court actions, the Fourth Circuit seemed to indicate that one would never exist in federal court – at least until the Supreme Court rules reporters are entitled to testimonial privilege.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Fourth Circuit did state the somewhat curious notion that even if the court wanted to create a reporter’s privilege in criminal cases, bound by Supreme Court precedent, it could not. Thus, the Fourth Circuit’s express reversal of the trial court’s Order may be tempered somewhat. Whether or not the Supreme Court of the United States will ever create a reporter’s privilege through its jurisprudence remains to be seen, but for now, chances are slim that reporters involved in a criminal investigation will ever be able to keep their sources confidential.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This opinion sets forth clear precedent that, absent bad faith, reporters have no privilege that would prevent them from testifying in a federal criminal proceeding.
This opinion could certainly be cited by other circuits or other district courts outside the Fourth Circuit when dealing with a similar issue.
Let us know if you notice errors or if the case analysis needs revision.