The case of New York Times reporter James Risen highlights the need for a federal shield law. In 2006, Risen published “State of War,” a book that described Operation Merlin, a failed CIA attempt to disrupt Iran’s nuclear program. Risen used classified information given to him by confidential source(s). The Obama Administration investigated the leak and filed criminal charges against former CIA agent Jeffery Sterling under the Espionage Act. The federal prosecutor also subpoenaed Risen, who is not charged with a crime, to testify in court to reveal his source(s). He refused.
Last year, the U.S. Court of Appeals for the Fourth Circuit, ruled that there is no First Amendment reporter’s privilege to protect confidential sources in criminal cases in federal court. Risen has appealed to the US Supreme Court, who may decide as early as June 2, whether to hear his appeal. If the Court denies his petition, Risen could be held in contempt of court and face jail time or fines if he refuses to reveal his confidential source(s).
In September, 2013, the Senate Judiciary Committee passed the Free Flow of Information Act (S. 987) on a 13-5 bipartisan vote. The bill would create a qualified reporter’s privilege, which would allow federal judges to strike a balance between protecting confidential sources and facilitating the public’s right to know and compelling a reporter to testify. NWU and the Shield Coalition support this bill as it includes freelancers as “qualified reporters.”
The bill contains a national security exception in leak cases (Section 5), which states that the risk of future leaks by a confidential source is not enough to force a reporter to testify. A reporter would have to reveal a confidential source only if the government proves that the reporter’s testimony would help to prevent an act of terrorism or other acts that could harm national security.
Risen’s book was published years after the alleged CIA operation. Under the Free Flow of Information Act, the government would have had to prove that forcing Risen to testify would prevent some future harm to national security.
If Risen’s petition is denied by the Supreme Court, it will be up to Congress to enact concrete legal standards for when reporters can and cannot protect confidential sources. The time has come for Congress to pass the Free Flow of Information Act.