Supreme Court refuses to provide immunity for NYT reporter in leak case

posted at 10:41 am on June 2, 2014 by Ed Morrissey

Do reporters have immunity from subpoenas in federal investigations of government leaks? Journalists assume they do, but a Supreme Court decision to reject the appeal of New York Times reporter James Risen suggests otherwise. Risen, who lost an appeal at the 4th US Circuit Court of Appeals, had hoped that the Supreme Court would intervene to block an attempt to press him into revealing his sources for his book, State of War:

The U.S. Supreme Court on Monday denied the appeal of a New York Times journalist who has refused to testify about anonymous sources in an ongoing criminal probe.

The justices, without comment, refused to intervene in the case. …

In the case, the federal government alleges former CIA employee Jeffrey Alexander Sterling gave Risen classified information about efforts to stop Iran from developing nuclear weapons. Risen allegedly used leaked information in his 2006 book “State of War.”

Risen refused to testify in Sterling’s criminal prosecution, and appealed July’s ruling by the U.S. 4th Circuit Court of Appeals compelling him to do so.

In order to grant cert and hear a case, four justices have to agree to add it to the docket. In this kind of case, where an ongoing court proceeding makes the potential for damage both substantive and acute, the court would be more likely to accept a case dealing with a significant constitutional issue. In these circumstances, a failure to even get a hearing at the Supreme Court says much about the orientation of the court in regard to a supposed constitutional right to refuse to testify in legitimate criminal prosecutions. If nothing else, the court has four liberal jurists and perhaps one libertarian in Antonin Scalia that might have been presumed to have some sympathy for this argument.

It’s also likely to produce even more pressure on Congress to provide a shield law to protect journalists like Risen. Unfortunately, most proposals attempt to have government define journalists rather than protect journalism. The most recent also included an exception large enough for a government-driven Mack truck to drive through, as well as create government-approved classes of journalism. That exception would have meant that Risen would still have to testify in this specific case, as this is an investigation touching on legitimate national-security concerns.

The decision is also about to put the Obama administration, and Eric Holder in particular, on a political hot seat:

Last week, Attorney General Eric Holder told a group of media executives that no reporter would ever be jailed while he is in office for carrying out news gathering duties, according to a Justice Department summary of the meeting.

Last summer the Justice Department also pledged to tighten its criteria for targeting journalists in leak cases.

So far, Risen isn’t being let off the hook for his testimony. That means that Holder’s pledge will come up against a hard reality when Risen refuses to testify and reveal his sources. Either the DoJ will have to pursue obstruction and/or contempt charges against the reporter for his “news-gathering duties,” or concede and look impotent. I’m guessing the promise will expire before the surrender occurs.


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Journalists have no rights that you or I don’t have, and shouldn’t.

ConstantineXI on June 2, 2014 at 10:45 AM

I think Hotair needs bigger share buttons, I can barely click these.

p0s3r on June 2, 2014 at 10:47 AM

Your papers, bitte.

Hmmm…

Your papers….are not in order.

Bishop on June 2, 2014 at 10:47 AM

So will the MSM now realize that they, too, are being targeted and respond accordingly? Nah, they’ll keep supporting the fascists.

Occams Stubble on June 2, 2014 at 10:51 AM

We are all journalists.

rhombus on June 2, 2014 at 10:51 AM

The New York Doin’ Times, the paper with a record.

Flange on June 2, 2014 at 10:53 AM

“Unnamed” sources have caused more trouble than we care to think about…just see how effective it is by Reid’s actions.

right2bright on June 2, 2014 at 10:53 AM

First he spys on them and now he’s not going to keep them out of jail, what good is this guy?

Cindy Munford on June 2, 2014 at 10:53 AM

So which one is it?

Last week, Attorney General Eric Holder told a group of media executives that no reporter would ever be jailed while he is in office for carrying out news gathering duties, according to a Justice Department summary of the meeting.

Or

Last summer the Justice Department also pledged to tighten its criteria for targeting journalists in leak cases.

Me thinks Holder will choose the former over the latter

LeftCoastRight on June 2, 2014 at 10:55 AM

I wish someone WOULD target me for something I wrote. I’m a reporter for a small weekly newspaper up here in the Colorado Rockies and I could use a little excitement.

Walter L. Newton on June 2, 2014 at 10:56 AM

I smell ‘prosecutorial discretion’.

The Schaef on June 2, 2014 at 10:59 AM

Shield laws are stupid, and unworkable. The problem is that freedom of the press is not an enumerated right that protects a specific profession. It is an enumerated right that protects all of us. And this is why they have such a hard time crafting a shield law because the tendency is to try and define what a journalist is while doing so. But defining journalists is an automatic violation of the 1st Amendment since such a definition would create a protected class above the law, and deny everyone else their 1st Amendment rights.

No shield laws, and equal treatment under the law. Problem solved.

NotCoach on June 2, 2014 at 11:04 AM

Rights come with responsibilities.

Has journalism been exercising their responsibilities, lately?

trigon on June 2, 2014 at 11:05 AM

“… as this is an investigation touching on legitimate national-security concerns.”

Touching on? LOL! My youtube of me going grocery shopping does, too. Just ask, um, Susan Rice.

Dusty on June 2, 2014 at 11:06 AM

If nothing else, the court has four liberal jurists and perhaps one libertarian in Antonin Scalia

Thanks for allowing me to start my day with a belly laugh.

Joseph K on June 2, 2014 at 11:09 AM

These journalists deserve no protection, they’ve proven themselves unworthy of even 1st amendment protections.

bflat879 on June 2, 2014 at 11:11 AM

Holder might not be able to prevent an indefinite detention.

With the people we have in charge now I doubt that will ever happen.
PC has taken over. When POTUS can ignore laws with impunity he sets a dangerous tone. Ain’t nothin’ stopping them now.

LeftCoastRight on June 2, 2014 at 11:24 AM

B.O. will just E.O. his own ruling. I mean, when you can bypass the 500+ in Congress, what are nine more in another Branch?

Whiterock on June 2, 2014 at 12:00 PM

My point is that a judge doesn’t need Holder’s permission to order a jailed detainment for contempt. Holder and Obama might be powerless to prevent it. In such a case, Obama’s willingness to ignore laws might be immaterial.

That could be true. How long behind bars would a reporter spend in this environment? I think Holder and his boss (don’t forget the media!) would pull out all the stops to make sure he’s sippin’ Latte’s at Starbucks before the week is out.

LeftCoastRight on June 2, 2014 at 12:05 PM

Welcome to the fine Obama Kangaroo courts of the United States of America. The Constitution means nothing but the great left wing god and lord and omnipotent Obama reins supreme and as he says it so it shall be writing and place higher then all other thoughts or rules.

pwb on June 2, 2014 at 12:11 PM

Didn’t James Risen withhold this information from the NYTimes, just so he could use it in his book? He is then not a journalist but an author.

meci on June 2, 2014 at 12:27 PM

In these circumstances, a failure to even get a hearing at the Supreme Court says much about the orientation of the court in regard to a supposed constitutional right to refuse to testify in legitimate criminal prosecutions.

Or possibly it says much about NSA eavesdropping?

PersonFromPorlock on June 2, 2014 at 12:29 PM

…something stinks!

KOOLAID2 on June 2, 2014 at 12:54 PM

My point is that a judge doesn’t need Holder’s permission to order a jailed detainment for contempt. Holder and Obama might be powerless to prevent it. In such a case, Obama’s willingness to ignore laws might be immaterial.

blink on June 2, 2014 at 11:59 AM

Unless said reporter voluntarily walks himself into jail, who do you think is going to take him into custody against Holder’s wishes?

bofh on June 2, 2014 at 1:06 PM

You can keep your journalistic immunity if you like your journalistic immunity or something….

workingclass artist on June 2, 2014 at 2:05 PM

Me thinks Holder will choose the former over the latter

LeftCoastRight on June 2, 2014 at 10:55 AM

As long as the leak is not from the DOJ, IRS, VA, DOD, or is not detrimental to obama. He will jail a journolist in a heartbeat if the journolist crosses him or obama.

Old Country Boy on June 2, 2014 at 2:13 PM

So, is WV power the juice generated in that state? Or the juice used in that state? Because West Virginia and Ohio generate a ton of electricity that is used by other states.

hawksruleva on June 2, 2014 at 2:49 PM

Oops – wrong story.

hawksruleva on June 2, 2014 at 2:50 PM

They’re sprucing up the Judith Miller wing of the detention center in anticipation of a new arrival.

Another Drew on June 2, 2014 at 3:27 PM

Unless said reporter voluntarily walks himself into jail, who do you think is going to take him into custody against Holder’s wishes?

Someone who might be facing his own Contempt-of-Court charges for failing to do so.

Another Drew on June 2, 2014 at 3:29 PM

Ain’t nothin’ stopping them now.

The journalist protected class has already been created and owes allegiance to Obama. No constitutional Supreme Court rulings are required when you own the DoJ and the media. Thanks, Democrats, I won’t soon forget who did this.

The Oso, Washington landslide is an interesting example. 40+ killed and no media outrage against any politician or government agency. Why? Well, from local dogcatcher up through state reps and Governor, US Senators and Reps through to the President of the United States… not a single Republican to be found. All Democrats, and the silence of the media is deafening.

Ray Van Dune on June 3, 2014 at 9:45 AM

If OUR “watch dog” the press, can’t “report” without fear, we are lost……the supreme court “belongs” to the executive branch now, they are like the “supreme counsel” of Iran. they belong to the WH.

nonstopca on June 3, 2014 at 5:55 PM