News Outlets Support Reporter’s Privilege

(CN) - In a joint amicus brief, 29 media entities and nonprofit groups lent their support to New York Times reporter James Risen, arguing that he should not be compelled to reveal the confidential source who leaked classified information about a secret CIA operation.

Risen is a two-time Pulitzer Prize-winning journalist who allegedly incorporated information he received from former-CIA operative Jeffrey Sterling into Chapter 9 of his 2006 book "State of War." Sterling was indicted by the government in 2010 with the unlawful disclosure of national defense information.

The amici include the New York Times, the Tribune Company, the Washington Post, Time Inc., Newsweek, CBS Corporation, NBC Universal, ABC Inc., Fox News, and the Associated Press.

The brief stated: "Amici are concerned that if this court adopts the government's unprecedented position- that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials - their ability to report on matters of substantial public concern will be significantly impaired."

They asserted that, "this nation's historical practice of respecting the confidentiality of journalists' communications with their sources has been vital to ensuring that the press effectively performs its constitutionally protected role of disseminating information to the public, including information about the conduct of our government in the name of protecting the national security."

Citing the leak of the "Pentagon Papers," the Pentagon's secret history of America's involvement in Vietnam, as well as the leak of photographs depicting the abuse of detainees at Abu Ghraib prison in Iraq, the amici claimed that "some of the most distinguished and honored news reporting in our history has both addressed the government's conduct in the national security context and been based on information provided by confidential sources."

"These stories are illustrative of the kinds of information about government conduct that would never have reached the public if a journalist had not been able credibly to promise confidentiality to a source. In many of these instances, although the source may arguably have violated a legal duty by providing such information to a journalist in the first instance, the subsequent reporting inevitably led to the discovery and prosecution of much more serious crimes," the amici stated.

Furthermore, "amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources."

Echoing similar arguments in Risen's appellate brief, amici contended that "no other circuit has ever endorsed the government's contention that the reporter's privilege does not protect against the compelled disclosure of confidential sources in criminal trials in federal courts."

"Simply put, outside the grand jury context, the federal appellate courts that have considered the matter have uniformly applied a qualified reporter's privilege, grounded in the First Amendment and/or federal common law, that protects journalists from the compelled disclosure of their confidential sources in the context of adversarial criminal proceedings," the brief stated.

Indeed, "If this court were to adopt the rule urged by the government - that there is no such protection in the absence of a showing of governmental bad faith - it would not only be obliged to reject its own precedent, but it would stand as the only federal court of appeals to so hold," the amici added.

The Thomas Jefferson Center for the Protection of Free Expression also filed a separate amici briefwith the 4th Circuit, urging the court to "adopt a common law reporter's privilege pursuant to the authority provided under Federal Rule of Evidence 501."

The Jefferson Center said: "The Supreme Court has used Rule 501 to adopt or expand similar privileges, and the strong public interest in the free flow of information to the public supports the need to recognition of a reporter's privilege in this case. Finally, the adoption of a common law privilege would satisfy the need for consistent recognition of protections among federal and state courts for reporters and their sources, without which the public policy goals of other jurisdictions that have adopted such a privilege would be frustrated."

49 states offer at least some qualified protection to reporter's sources, according to the Jefferson Center. "The policy objectives of these 49 states will be defeated if the federal courts fail to recognize a privilege under Rule 501," it concluded.

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