Did NYT Reporter James Risen Dodge a Bullet at the Supreme Court?

New York Times reporter James Risen is a perpetual thorn in the side of the U.S. intelligence community. The Pulitzer Prize winner revealed President Bush’s warrantless wiretapping program and has developed a well-deserved reputation as a fearless chronicler of America’s intelligence agencies. On Sunday, he returned to the front page with a story about the National Security Agency’s facial recognition programs.

A day later, he was back in the headlines for a much grimmer reason: The U.S. Supreme Court refused to consider whether he could use so-called "reporter’s privilege" to avoid having to bow to a government effort to force him to divulge his source in revealing the details of a botched CIA operation in Iran. The one-line order from the court effectively upholds a decision by a federal appeals court finding that the Constitution does not give journalists special protection from the law.

But is Monday’s move by the court actually a victory in disguise for Risen? The legal waters on the question of reporter’s privilege are famously muddled, and it is far from clear that the current justices would be particularly sympathetic toward the embattled reporter.

By not ruling on the issue, the Supreme Court has dodged the question of whether First Amendment rights extend to reporters trying to keep their notebooks shut to the prying eyes of government investigators. Federal courts have issued conflicting rulings on whether such a thing as a reporter’s privilege exists, and, for now, the Supreme Court has allowed that disagreement to continue. Had the court taken up the case and issued a ruling saying that reporters can be compelled to give up their sources, the justices would have struck a serious blow against media rights in the United States. In that sense, the order was no victory — but it did avoid defeat.

"The court has been quite hostile to claims for special reporter’s privilege since its decision in Branzburg v. Hayes, almost forty years ago," Prof. Robert Post, the dean of Yale Law School, wrote in an email. "In my view it is very unlikely that the court would have reached a favorable outcome for the reporter."

But in the short term, the development at the court contains no good news for Risen and sets up a showdown between him and the Department of Justice. If the department asks Risen for his source and he refuses, the reporter could be sent to jail. In a meeting last month with media executives, Attorney General Eric Holder indicated that he would try not to go that far. "As long as I am attorney general, no reporter who is doing his job is going to go to jail," Holder is reported to have said.

Whether, in the view of the Justice Department, Risen was "doing his job" remains unclear. The Justice Department did not return requests for comment on whether Holder’s comments would apply to Risen.

"The ball is now in the government’s court," Joel Kurtzberg, Risen’s attorney, wrote in an email to the New York Times. "The government can choose not to pursue Mr. Risen’s testimony if it wants to. We can only hope now that the government will not seek to have him held in contempt for doing nothing more than reporting the news and keeping his promises."

The prosecution of Risen centers on his 2006 book State of War. In that book, Risen reveals that the CIA, through a former Russian nuclear scientist, sold blueprints for a nuclear triggering device to Iran that intentionally contained a disguised flaw. The agency thought that Iran would struggle to identify the flaw and that their nuclear program would be hobbled as a result. They were wrong. The flaw was easily identified, and Iran was able to benefit from the accurate information the blueprints contained.

The government is now prosecuting Jeffrey Sterling, a former CIA official, for providing Risen with that information and hope to force the reporter to identify Sterling as the source.

In Branzburg, a case decided the Supreme Court decided in 1972 and its only verdict on the issue of reporter’s privilege, the court issued a maddeningly vague ruling on whether members of the media can be protected from subpoenas. While the court decided that reporters could not be shielded from grand jury subpoenas, Justice Lewis Powell, who joined the majority, wrote in a concurring opinion that judges must strike a "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony." Numerous courts have seized on those words to issue rulings protecting journalists from subpoenas; others have relied on the majority opinion to issue rulings that go in the exact opposite direction..

During the intervening years, the Supreme Court itself has issued no guidance on the question, and it is unclear how the current court would break on the issue. On the one hand, under the leadership of Chief Justice John Roberts, the court has tended to show a high degree of deference to the government on issues of national security. On the other hand, it has also issued a series of aggressive free speech rulings that have expanded the scope of the First Amendment when it comes to giving corporations and individuals the rights to make almost unlimited political contributions.

Still, even the free speech rulings leave little reason to believe the court would have sided with Risen. "Just a few terms ago, in the Citizens United decision, a majority of the Court reiterated that the First Amendment gave no special privileges to the press that were not to be accorded to every speaker," Post said, referring to the landmark case that reduced restrictions on money in politics.

And as Steve Vladeck, a professor of law at American University, pointed out to FP, the Roberts court has also relied on the First Amendment to hand victories to the government in the realm of national security. In a 2010 case that pitted First Amendment rights against national security imperatives, the court ruled that a group of human rights activists had violated a law prohibiting "material support" of terrorist groups. The activists had provided support to a range of groups for nonviolent activities, including peacebuilding projects and efforts to teach human rights law.

Had the court taken up the Risen case and compelled him to testify, the court would have issued what would likely have been seen as a landmark ruling and one that would have further chilled investigative reporting under the Obama administration. After pledging that he would create the most transparent administration in history, President Obama has launched eight leak investigations under the Espionage Act, more than all of his predecessors combined.

And in Obama’s effort to clamp down on leaks, few things are as useful as a cooperating journalist. "In a leak investigation, no evidence is as good as the reporter’s testimony," UCLA Law Professor Eugene Volokh quipped in an interview.

For now, the lack of legal certainty serves as a check on both journalists and the government, according to Vladeck. The lack of a clear precedent on journalists’ rights keeps the government from going after journalists too aggressively, for fear of triggering a ruling that might enshrine reporters’ privilege under the Constitution. Meanwhile, the uncertainty over whether journalists can provide their sources with complete pr
otection has hampered the work of investigative journalists in recent years. According to an October report from the Committee to Protect Journalists, the Obama administration’s aggressive pursuit of leakers has put a serious chill on investigative reporting, especially for stories focusing on issues of national security. On Monday, the CPJ called on the Obama administration to drop the subpoena issued to Risen.

While the Supreme Court probably wouldn’t have protected Risen, the Justice Department still might.

In an email to FP, Risen says he hasn’t given up. "I will continue to fight," he said.

Shane Harris contributed to this report.