US court says reporter must testify in leak case

Updated: 2013-07-20 09:51


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WASHINGTON - A federal appeals court ruled on Friday that a New York Times journalist must testify in a high-profile government leak case, saying journalists do not have special free speech protections.

The ruling by the Richmond, Virginia-based 4th US Circuit Court of Appeals is a victory for the Obama administration, but it could hurt efforts by Attorney General Eric Holder to improve relations with the media. The Justice Department last week pledged to tighten its criteria for targeting journalists in leak cases.

Two other cases this year sparked a media outcry that the Justice Department had been overzealous in investigating government leaks and had infringed on free speech rights.

Prosecutors sought the testimony of reporter James Risen, author of a book, "State of War," that contained information the government believed was leaked by former CIA officer Jeffrey Sterling.

In 2010, Sterling was indicted on 10 charges relating to Risen's book, including unauthorized retention and communication of national defense information.

The following year, Holder authorized the Justice Department to issue a subpoena seeking Risen's testimony. Risen challenged the subpoena, saying he could not be compelled to testify under the First Amendment and federal common law.

A three-judge panel ruled Friday there is no "reporter's privilege" under the First Amendment's guarantee of freedom of speech, meaning journalists do not receive special treatment.

"The reporter must appear and give testimony just as every other citizen must," wrote Chief Judge William Traxler. "We are not at liberty to conclude otherwise."

Judge Roger Gregory dissented, pointing out that the law is not clear on the issue. Some courts have found in the past that there are instances in which reporters can invoke a "qualified privilege," which means they can refuse to testify.

"The paramount importance of the free press guaranteed by our Constitution compels me to conclude that the First Amendment encompasses a qualified reporter's privilege," Gregory wrote.

Risen's attorney, Joel Kurtzberg, said he was disappointed with the ruling and that he and his client were "evaluating our next steps." A spokesman said the Justice Department agreed with the decision and was considering how to proceed.

David Anderson, an expert in media law at the University of Texas at Austin, said the ruling was consistent with recent rulings in similar cases, which have indicated "a hardening of the judicial arteries toward the press."

If Risen refuses to testify, he will almost certainly face imprisonment and "had better pack his toothbrush," he said.

Theodore Boutrous, a lawyer in Los Angeles who has represented journalists in similar cases, said the ruling should prompt the Justice Department to back down on its request that Risen testify.

"One would hope they would look at this situation anew," he said.


Various media organizations, including Reuters America LLC, which is owned by Thomson Reuters Corp, joined a friend-of-the-court brief in support of Risen.

Congress is considering a new media shield law, backed by President Barack Obama, that would enshrine legal protections for journalists. The Senate Judiciary Committee has scheduled a hearing on the bill next week.

Friday's ruling came one week after the Justice Department issued new guidelines that would curb the ability of prosecutors to seize reporters' records when investigating leaks.

In a recent case, prosecutors obtained a warrant to search Fox News correspondent James Rosen's emails. He was named a "co-conspirator" in a federal leaks probe involving his reporting on North Korea.

In another case, the Justice Department seized Associated Press phone records as part of a probe into leaks about a 2012 Yemen-based plot to bomb a US airliner.