Analysis: Sterling decision undercuts journalists' ability to protect sources | St. Louis Public Radio

Analysis: Sterling decision undercuts journalists' ability to protect sources

Aug 1, 2013

This article first appeared in the St. Louis Beacon: President Barack Obama's public relations offensive to counter bad press about the NSA snooping on Americans and investigators snooping on reporters suffered multiple setbacks in the past week.

  • On Thursday, Russian officials ignored administration appeals and let Edward Snowden waltz out of the Moscow airport with asylum. Snowden publicly blamed the United States for violating the law in trying to capture him on espionage charges.
  • On Wednesday, the Senate Judiciary Committee chair Sen. Patrick Leahy, D-Vt., said that the Obama administration had overstated how helpful the NSA data collection program had been in stopping terrorist incidents. Earlier in July, the House had stopped just short of passing a bill to restrict the NSA program.
  • On Tuesday, a military court cleared WikiLeaks leaker Pvc. Bradley Manning of the most serious charge against him, aiding the enemy.  That made it appear to some critics that administration had overcharged him.  Manning was convicted of other serious charges.

The week of setbacks for the president's attempt to win back favor in the press  began last Friday with a federal appeals court ruling that may have been the death knell for constitutional protection of the reporter/confidential source relationship.

The above was added to the following, which was posted July 30:

President Barack Obama’s charm offensive toward the press suffered a setback this month – a setback of its own making. The government won an appeal forcing New York Times reporter James Risen to testify in the espionage prosecution of St. Louisan and former CIA agent Jeffrey Sterling.

The Obama administration’s victory came after several months during which Attorney General Eric Holder had been making nice to the media. The administration’s media offensive began in response to the disclosure that the Justice Department had secretly subpoenaed the telephone and business records of about 100 Associated Press reporters and editors in a national security leak investigation. (Click here for an analysis of the history of publishing national security secrets.)

On July 12, to counter the image that the Justice Department was investigating the press, Holder strengthened the department’s guidelines that long have required that prosecutors in leak investigations subpoena records only as a last resort. Holder strengthened the presumption that prosecutors would contact the news organization and negotiate to obtain the information instead of secretly subpoenaing the data, as it had in the AP investigation.

In addition, Holder reemphasized that the Justice Department would not prosecute a journalist for newsgathering and reaffirmed the administration’s support for a federal shield law that would enable journalists to protect confidential sources in federal court in many but not all cases.

Then came the decision in the Sterling case in which the 4th U.S. Circuit Court of Appeals in Richmond ruled 2-1 that the First Amendment does not provide a shield for reporters to protect confidential sources in federal criminal cases.

In other words, the Obama administration won a case definitively ruling that there is no constitutional shield for reporters’ sources, even as it was pushing a law in Congress to create one.

Joseph E. Martineau, a media lawyer at Lewis Rice Fingeresh in St. Louis, said in an email that the Sterling decision seemed to “sound the death knell for a judicially recognized First Amendment journalist’s privilege in criminal cases” to protect the identity of a confidential source.

Army private cleared of aiding enemy in WikiLeaks case

Military judge found U.S. soldier Bradley Manning not guilty of aiding the enemy — the most serious charge he faced for handling over documents to WikiLeaks, but guilty of most of the more than 20 other crimes.

The Sterling case has gotten less attention than the higher profile leak prosecutions and investigations of Pfc. Bradley Manning in the WikiLeaks disclosures, Edward Snowden in the NSA leak and the AP journalists in connection with a story that appeared to compromise an intelligence source in al-Qaida. But the court’s decision in the Sterling case was an important one because media lawyers have been trying to claim a constitutional reporters’ privilege for decades.

In 2006, Risen wrote “State of War,” a book that described a botched CIA operation to provide bogus information to Iran for its suspected nuclear weapons program. Instead, the covert operation may have provided useful information. Sterling, who grew up in Cape Girardeau and graduated from Millikin College and Washington University Law School, is accused of having leaked the information to Risen. Sterling insisted on his innocence in an interview published in the Beacon in which he complained that the press cares about only Risen, not his innocence.

Who’s a journalist?

Even as the press’s campaign to win shield protection suffered a defeat in court, the proposed bill to enact a shield legislatively also was running into trouble on Capitol Hill.

On Thursday, the Senate Judiciary Committee postponed consideration of the Free Flow of Information bill, sponsored by U.S. Sens. Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C. The committee put off the bill until this week after U.S. Sen. Dianne Feinstein, D-Calif., said she would offer an amendment to make clear that organizations like WikiLeaks are not considered journalism organizations and therefore not entitled to the shield of confidentiality. Schumer has agreed that WikiLeaks should not be covered because it is not “legitimate” enough.

The debate about who is a journalist echoes a general debate among journalists in this era when anyone with a computer can claim to be a journalist or even a publisher.

Free speech advocates who backed the New York Times in its famous fight to publish the leaked Pentagon Papers have divided over whether Julian Assange of WikiLeaks should be considered a publisher. Attorney Floyd Abrams has said no and former New York Times counsel James Goodale yes.

Although nearly all journalism organizations favor the federal shield law, journalists are uneasy with Congress deciding who is a journalist.

If, for example, Assange and WikiLeaks are not protected, what about an advocacy reporter such as Glenn Greenwald of the Guardian who broke the NSA data collection story leaked by Snowden. Greenwald rejects objectivity and has long been an opponent of U.S. secrecy and foreign policy, just as Assange has been.

Martineau said that the replacement of mainstream editors by the likes of Manning makes judicial or legislative acceptance of a shield law difficult.

“In the past, with the mainstream media, editors applied great scrutiny to reporting based on confidential source information and to the matters it would report,” he wrote. “This has changed, or at least there is a perception that it has changed. Such editorial controls are no longer evident. With the likes of PFC Manning and Edward Snowden, and indiscriminate and wholesale disclosures through the internet by WikiLeaks and others who make it their business to disclose secrets, not because of a significant public interest … but because they can, I see little judicial or political inclination to provide protection for confidential sources.

“If any protection for confidential sources relationships is to survive, it will not come from the law, but from the courage of the journalist who having given the promise are willing to accept the price for keeping it.”

Earl Caldwell and the Panthers

The roots of the shield law lie in a 41-year-old Supreme Court case Branzburg vs. Hayes. Earl Caldwell of the New York Times was the best known of the reporters involved in the case. He had spent months sitting in on meetings of the Black Panthers in Oakland and had written stories with information about the Panthers having guns and even talking about assassinating the president.

Federal prosecutors subpoenaed Caldwell to testify to a grand jury and he refused, claiming that the First Amendment protected the confidential relationship between a reporter and a source in much the same way that the confidentiality of a lawyer and client or priest and penitent is protected.

But the press lost 5-4. Justice Byron White, writing for the majority, said that the court was not willing to recognize a new privilege and said that the criminal process had the “right to every man’s evidence.”

In a prescient passage, White foresaw the difficulty of figuring out who was a journalist. He wrote that the court wasn’t willing to go down that uncertain road.

“Sooner or later,” he wrote, “it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

Ironically, the court handed down its opinion in Branzburg a few days after the Watergate break-in. That was only months before the most famous confidential source in history, Deep Throat, provided the Washington Post with the information that would help lead to the resignation of President Richard M. Nixon.

The Branzburg decision was an enigma because of a puzzling concurring opinion by Justice Lewis Powell. Powell joined the majority opinion but added that there would be constitutional protection for a reporter protecting a source if prosecutors were acting in bad faith.

In the three decades that followed, journalists and their lawyers successfully turned their 5-4 loss into a victory through clever lawyering. Media lawyers essentially argued that even though Powell had joined the majority in rejecting a reporter’s privilege, his concurring opinion should be read together with Justice Potter Stewart’s dissent to create a limited constitutional privilege.

They said Powell implicitly endorsed Stewart’s three-part test requiring the government to show:

  1. probable cause to believe the reporter had the information,
  2. no alternative means to obtain the information and
  3. a compelling need for the information.

Many courts bought the argument.

In addition, states across the country passed shield laws. At the time of Branzburg, 17 states had shield laws. Now, with the exception of Wyoming, every state and the District of Columbia either has a shield law or court decision providing a reporter’s privilege. But there is no federal shield law.

Then in 2003 came the Valerie Plame leak case that led to Judith Miller spending 85 days in jail to protect the identity of the leaker, I. Lewis “Scooter” Libby, a top aide to Vice President Dick Cheney.

The Times again tried to combine Powell’s concurring opinion with the dissent, but it didn’t work this time. The federal appeals court said this argument was flatly wrong, pointing out that Powell had signed the majority’s opinion.

Martineau summarized the developments this way: “Branzburg was ambiguous at best and really did not provide much support for the privilege. Clever arguments, limiting the holding to the grand jury setting, or positing Powell’s concurrence as setting the standard, worked for many years with a judiciary which saw a need to protect confidential source relationships with mainstream journalists. Now, however, the tide has turned.”

Sterling opinion

In the Sterling case decided this month, media lawyers argued again that Powell was actually endorsing Stewart’s three-part test creating a limited constitutional privilege.

Judge William B. Traxler Jr., who authored the majority opinion, wrote: “We cannot accept this strained reading of Justice Powell’s opinion. By his own words, Justice Powell concurred in Justice White’s opinion … and he rejected the contrary view.” He pointed out that the federal courts had rejected the same argument in the Miller/Plame case.

Traxler wrote bluntly: “There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify."

The decision reversed U.S. District Court Judge Leonie M. Brinkema who had ruled that Risen did not have to testify because the circumstantial evidence that the government had compiled from telephone and travel records was enough.

But Traxler disagreed. “Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred …. He is the only witness who can specify the classified information that he received, and the source or sources from whom he received it.”

Traxler added that the circumstantial evidence against Sterling is not as strong as Brinkema had said. He pointed out that Sterling has said that another agent had the information and had previously leaked to Risen.

Martineau noted that the appeals court also rejected an alternative argument used by the media: Even if there is no constitutional privilege, there is one rooted in years of common law.

The only bright spot for the media, wrote Martineau, was that the court recognized that the three-part test advocated by media lawyers applies in civil cases.

As Congress turns back to the shield law this week, it faces multiple moving parts – the possible appeal of the Sterling decision, the ongoing trial of Manning and the bizarre saga of Snowden’s travels through China and Russia in search of asylum.