This week the Supreme Court refused to hear the appeal of James Risen, a New York Times reporter who has been fighting a subpoena seeking to require him to testify at the upcoming trial of a former CIA agent.
Bad news for freedom of the press, right? Not necessarily.
Risen's testimony is being sought at the trial of Jeffrey Sterling, the former agent who was indicted in 2010 for revealing classified information, including the tale of a failed CIA plan to provide Iran with flawed blueprints for a nuclear weapon. That plot was detailed in a book by Risen.
In ruling against Risen, the Richmond, Va.-based U.S. 4th Circuit Court of Appeals held that the 1st Amendment doesn't confer on reporters "a special privilege that would allow them to withhold relevant information about criminal conduct without a showing of bad faith or other such improper motive." The appeals court cited as authority for that proposition a Supreme Court decision called Branzburg vs. Hayes.
In that 1972 case, the justices indeed ruled 5 to 4 that there was no reporter's privilege. But Justice Lewis Powell, though he signed Justice Byron White's majority opinion, also penned a concurrence that offered journalists something of a consolation prize.
Powell wrote: "The court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources." This had led some journalists and media lawyers to view Branzburg as a "4-1-4" decision, and it has provided cover for lower courts that recognized a qualified reporter's privilege.
Without action by the Supreme Court, the ruling against Risen is precedent only in the states covered by the 4th Circuit. But if the Supreme Court had decided to review the ruling, a majority might have ended up affirming on a national basis the appeals court's resounding rejection of a reporter's privilege — and relegating Powell's concurrence to the status of a footnote in legal history.
Meanwhile, it isn't clear that the Justice Department is willing to have Risen jailed for refusing to testify. Atty. Gen. Eric H. Holder Jr. approved the subpoena for Risen, but he has said that he doesn't believe reporters should go to jail for doing their jobs.
And though it would probably come too late to help Risen, there remains the possibility that Congress will pass a "shield law" recognizing a reporter's privilege. Last year the Senate Judiciary Committee approved a Free Flow of Information Act that would allow traditional journalists (and in some cases bloggers) to protect their sources, and last week the House approved an amendment to a Justice Department spending bill that would prevent the department from compelling reporters to testify about confidential information or sources.