Court Says Reporters Can Be Compelled To Give Up Sources In Whistleblowing Cases

from the uh-oh dept

Fri, Jul 19th 2013 2:20pm — Mike Masnick

Right. Remember last week when the DOJ said that it was going to be a lot more careful about spying on journalists, or using them as a way to find their sources concerning government whistleblowing (or, in the DOJ's mind "evil leakers who are aiding the enemy")? Yeah, so a bit awkward on the timing here, as in the DOJ's fight against James Risen (the NY Times reporter that the DOJ has been trying to force to reveal his sources concerning earlier NSA leaks), an appeals court has now said that Risen can be compelled to testify and reveal his sources.

The two judges (out of a three judge panel) who felt this way seriously twisted previous precedents concerning whether or not someone could be compelled to testify if you "witness" a crime. But the point of the laws there are basically if you see someone dealing drugs, you can be compelled to testify about it. With a reporter talking to a source, where that source is blowing the whistle on the government, then yes, the whistleblower may be technically "breaking the law" in providing info to a journalist, but it's an entirely different situation than say a journalist reporting on drug dealers (the precedent case that the court relied on). But, the court ruled otherwise.

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

It is difficult to overstate the chilling impact this particular ruling will have on investigative journalism, especially when it comes to reporting on government abuse and corruption. Even if a journalist promises confidentiality and completely means it, this ruling means the government can just drag that journalist to court and force him or her to reveal his or her sources. That's going to completely freak out whistleblowers. While the court disagrees, I have a hard time seeing how this does not, fundamentally, violate the First Amendment's protections for press freedom.

Given that, I agree with Judge Gregory, who wrote a strong dissent.

Today we consider the importance of a free press in ensuring the informed public debate critical to citizens’ oversight of their democratically elected representatives. Undoubtedly, the revelation of some government secrets is too damaging to our country’s national security to warrant protection by evidentiary privilege. Yet the trial by press of secret government actions can expose misguided policies, poor planning, and worse. More importantly, a free and vigorous press is an indispensable part of a system of democratic government. Our country’s Founders established the First Amendment’s guarantee of a free press as a recognition that a government unaccountable to public discourse renders that essential element of democracy – the vote – meaningless. The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.

The dissent is really worth reading, going into great detail on how this ruling appears to contradict previous rulings protecting the right of journalists to keep sources confidential.

In the past, Risen himself has said that he will appeal such a ruling and, further, that he would go to jail before revealing his sources. Either way, yet again, we see the Obama administration's all-too-aggressive war against whistleblowers and the impact it has. Various national security reporters have already been talking about how sources have been clamming up lately, and this is only going to lead to more of that -- and much less oversight and reporting on government fraud, abuse and corruption.

Sterling Ruling (PDF)Sterling Ruling (Text)

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Filed Under: 4th circuit, doj, first amendment, investigative journalism, james risen, journalism, leaks, press, sources, whistleblowing

33 Comments

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Anonymous Coward, 19 Jul 2013 @ 2:25pm

Welp. America just went full-on fascist.
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- Anonymous Coward, 19 Jul 2013 @ 3:30pm
  
  Re:
  If your going to go that far, you dont understand facisim.
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- Никто, 19 Jul 2013 @ 8:20pm
  
  Re:
  Fascism refers to collusion between gov't and industry, not to oppression or totalitarianism.
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  - Daisee, 20 Jul 2013 @ 2:39pm
    
    Re: Re:
    Indeed that is fascism and there is most certainly collusion between gov't/corp's and didn't Roosevelt warn about this in 1912. "Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to befoul this unholy alliance between corrupt business and corrupt politics is the ﬁrst task of statesmanship." Unfortunately there are no statesmen left.
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- Anonymous Coward, 20 Jul 2013 @ 12:55am
  
  Re:
  Just went?
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Anonymous Coward, 19 Jul 2013 @ 2:34pm

So they're not done driving businesses and people away yet?
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Skeptical Cynic (profile), 19 Jul 2013 @ 2:35pm

So we are now truly a police controlled state.
Enjoy the fruits of your electorate decisions. Enjoy!!
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- crade (profile), 19 Jul 2013 @ 2:47pm
  
  Re: So we are now truly a police controlled state.
  Well, if the govt doesn't let people in on what they are up to, you can't make informed electoral decisions.
  garbage in, garbage out..
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  - Skeptical Cynic (profile), 19 Jul 2013 @ 3:25pm
    
    Re: Re: So we are now truly a police controlled state.
    Agreed. They provide the least that is required of them in terms of clarity.
    
    Their ideal world is a place where everything they do is ok and no one shall ever challenge them on why they did it.
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Anonymous, 19 Jul 2013 @ 2:39pm

Note to William Shakespeare
Strike "lawyers". Replace with "judges".
FTFY
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crade (profile), 19 Jul 2013 @ 2:45pm

Considering that the government makes the laws, so whether or not any particular story is a crime is up to them, it basically means they can force any journalist to reveal their sources whenever they see fit.

Yeah, the end effect is silencing of journalist's sources, or at least forcing them to act anonymously.

Thats quite a ideological statement from the U.S.
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out_of_the_blue, 19 Jul 2013 @ 2:45pm

Hmm, you unwittingly adopt a distinction for "journalist"...
But actually "journalist" shouldn't be limited because someone writing publicly has no rights that every other citizen doesn't. Courts have more or less upheld a privilege for those in major media outlets, but that's actually a dangerous idea, and gets back to what you've mentioned recently: who is or is not a "journalist" with such privilege? It's a flawed notion.

Now, as matter of law, the ruling is correct that anyone can be compelled to testify, but I'd rarely support it. Here, DOJ is pretty clearly fishing for basic identity, not confirming a solid case. So unless were some absolutely compelling special circumstances, I'd stick with the established privilege, 'cause no citizen should be forced to inform on others to gov't.

For now, we can still hope that the Supreme Court won't trash another right.
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- crade (profile), 19 Jul 2013 @ 2:48pm
  
  Re: Hmm, you unwittingly adopt a distinction for "journalist"...
  Someone writing publicly has no rights that every other citizen doesn't when writing publicly, that is true.
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  - crade (profile), 19 Jul 2013 @ 2:50pm
    
    Re: Re: Hmm, you unwittingly adopt a distinction for "journalist"...
    Those rights being whatever doesn't conflict with the current government's wishes.
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Anonymous Coward, 19 Jul 2013 @ 2:53pm

Don't they already jail reporters for contempt of court until they reveal their sources?
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Dakir, 19 Jul 2013 @ 2:56pm

Yet more the entire system is corrupted from the top down. No doubt they used the NSA to do it. We have no guarantee they aren't blackmailing people. Nobody is safe now when courts, especially the Supreme Court sides with their agenda as Roberts did - who happened to meet with obama in private not once but twice. Why? The first time to bring him in line. They needed to make sure nobody was listening. Kagan was then put on the bench to as a fail safe. The country is lost. Hope is gone. You will never put this back in the bottle. Once evil takes root - and nobody stopped it when it was a seedling, killing it now as a destructive vine is nearly impossible.
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Anonymous Coward, 19 Jul 2013 @ 2:59pm

so, either the judges that ruled in favour of disclosing the sources where told how to vote by the government, they are scared that they have been up to something that they want to keep secret or they are scared they are going to be caught doing something in the future. every other sensible person would want to keep names secret. shame there isn't something that needs releasing concerning these two judges
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tracker1 (profile), 19 Jul 2013 @ 3:23pm

What about the 5th Amendment?
If they can be "compelled" to reveal a source because not doing so is illegal, doesn't that mean they have 5th amendment protections?
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- Anonymous Coward, 19 Jul 2013 @ 5:53pm
  
  Re: What about the 5th Amendment?
  Isn't the 5th about only "ones-self" incrimination, nothing about ratting out someone else...?
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  - Anonymous Coward, 20 Jul 2013 @ 12:58am
    
    Re: Re: What about the 5th Amendment?
    Jaywalk over to your sources. Claim fifth amendment protection.
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Anonymous Coward, 19 Jul 2013 @ 3:26pm

What's going to end up happening is that "sources" or "whistleblowers" are going to be more reluctant to reveal their identities to reports by contacting only by cell phone, email or other encrypted or disposable methods.

Nice job, big government. You've just made it even more impossible to try and reveal the identities of these "sources".
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Anonymous Coward, 19 Jul 2013 @ 4:44pm

we decide what's a crime. failing to testify about a crime you witnessed is also a crime. so's conspiracy. in fact, lets just cut out the middleman. you're all animals in need of caging, be thankful for every day we let you breath free.

sincerely
US government
freedom and liberty for all ;)
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Anonymous, 19 Jul 2013 @ 5:24pm

If freedom of speech is the freedom to say what you want to say, that must also include the freedom to NOT say what you DON'T want to say.
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- Anonymous Coward, 19 Jul 2013 @ 6:25pm
  
  Re:
  But that doesn't apply to ordinary people. If you witness a murder, you can't decline to testify when called. You can't claim "freedom of speech" and say you don't feel like telling them who did it.
  
  But somehow reporters think they are special.
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  - Anonymous Coward, 20 Jul 2013 @ 6:57am
    
    Re: Re:
    "you can't decline to testify when called"
    "reporters think they are special"
    
    Interesting that government folk think the same thing.
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Rekrul, 19 Jul 2013 @ 5:25pm

Did anyone else picture Obama fist-pumping and shouting "YES!!!" when this decision was announced?
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Anonymous Coward, 19 Jul 2013 @ 5:56pm

Dead Drop
Spies have been using it for years.

Instead of DropBox - Dead Drop the Govt's dirt-bag criminal activity for reporters to find.
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Pixelation, 19 Jul 2013 @ 9:06pm

Checks and imbalances
It sure does seem that the Executive branch has used their spying to control the Judiciary branch.
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Anonymous Coward, 19 Jul 2013 @ 10:01pm

Worst ruling ever.
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FM Hilton, 20 Jul 2013 @ 2:33am

It's now silence
There's been a noticeable lack of investigative reporting going on in the US for quite some time.

I wondered why. Now I know-it's a crime to keep sources secret and that if one does so, you can go to jail for it.

No wonder nobody wants to report any news. It's a criminal act to report the truth.
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- John Fenderson (profile), 22 Jul 2013 @ 2:24pm
  
  Re: It's now silence
  That's not why there's no real journalism in the US mainstream press.
  
  The real reason why is because the mainstream press in the US is totally owned and operated by huge corporations that run the business as if it were a high-profit entertainment venture, and can (and do) dictate what stories should be covered and what stories shouldn't, according to their business needs.
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Cloudsplitter, 20 Jul 2013 @ 8:56pm

This is why the WikiLeaks system is so important, an unknown whistle blower can not be sold out, and the government can not compel you to tell what you do not know. New World, New Rules, New Ways to Fight.
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Tice with a J (profile), 20 Jul 2013 @ 11:05pm

Bill of Rights vs. Natural rights
It may be that the First Amendment and Fifth Amendment do not protect a person's right to be silent about whom they've been talking to, and perhaps the Fourth Amendment does not either. But there's one more to consider here, namely the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I think that it is a natural right to keep secrets on whom you associate with, or what you see. There is a substantial difference between covering up wrongdoing and simply not talking about it. We rightfully condemn people for doing the former, in that they have actively prevented others from discovering the truth, but we have no right to condemn others for doing the latter, which involves no deceit at all.

Frankly, I don't like seeing anyone being compelled to testify under any circumstances, reporter or not. If our laws do not protect people from such compulsion, our laws are inadequate, or outright unjust.

Also, I find it telling that that compulsory testification has been used to enforce drug laws (which are themselves unjust) and to root out whistleblowers (who are revealing truths that the government wishes to keep secret).
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