Tarnished Sterling?

Appellate specialist Tyna Orren shares the following:

The 4th Circuit Court of Appeals recently issued a troubling First Amendment decision. In United States v. Sterling (July 19, 2013) the court adopted what a Los Angeles Times editorial calls “a scorched earth approach to claims that reporters have a right to protect their sources.” Reversing the district court, the appellate court ruled that James Risen, a New York Times reporter, must identify the source of classified information published in Risen’s book, State of War: The Secret History of the CIA and the Bush Administration. Other evidence in the case indicates the source was the defendant, James Sterling, a former CIA employee.

The court ruled that “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings,” unless the reporter shows the testimony is sought in bad faith, to harass, or for another non-legitimate motive.

The ruling was not unanimous, with dissenter, Judge Roger Gregory, making two points that suggest the case may be headed for the Supreme Court. First, Judge Gregory points out that Branzburg v. Hayes, 408 U.S. 665 (1972), which the majority says compels its decision, did not, as the majority believes, straightforwardly reject the existence of at least a qualified privilege to protect sources. To the contrary, in a concurrence, Justice Powell explained that as he understood the 5–4 majority opinion (in which he joined, and which would not have been a majority opinion without him), a qualified privilege does exist, and it is to be applied on a case-by-case basis “by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony,” in criminal and civil proceedings alike.

Second, Judge Gregory notes that the 2d and 11th Circuits have read Branzburg as explained and limited by Justice Powell, and have applied a qualified confidential-source privilege in criminal cases, so that the majority’s decision in Sterling creates a split among the Circuits.

Urging that “freedom of the press is one of our Constitution’s most important and salutary contributions to human history,” and that “protection of confidential sources is ‘necessary to ensure a free and vital press,’” Judge Gregory concludes the balance between freedom of the press and the obligation to give relevant testimony favors application of the privilege under Sterling’s facts.