Court To Cop: You Took 80 Days Away From A Person's Life With A Baseless Warrant, So We're Taking Your Immunity

from the Munday-is-no-Joe-Friday dept

In 2009, April Yvette Smith was arrested on drug dealing charges and spent 80 days in jail. The charges were ultimately dropped by the district attorney, but by the time it happened, Smith had already lost her job. The same can't be said for the officer who obtained her arrest warrant. His job was always secure. The only thing he's lost -- seven years after the fact -- is his immunity from Smith's civil rights lawsuit.

The chain of events leading to Smith's wrongful arrest are as horrible as they are stupid. Somewhere between Barney Fife and the banal evil of law enforcement ineptitude lies Officer Jason Munday. It starts with a "wired" confidential informant and ends in an indifferent "investigation" that sounds as though Munday just got bored sitting around the office.

Here's how it began, as detailed in the Fourth Circuit Court of Appeals opinion [PDF]:

On March 10, 2009, officers Munday and McGinley conducted an undercover investigation using a confidential informant, Rufus Lynch Sr. The officers searched Lynch, wired him with audio and video recorders, and gave him sixty dollars. Lynch then went to 728 East Pine Street, where he purchased crack cocaine from two individuals. After the transaction, Lynch returned to the officers. He told the officers that he purchased drugs from April Smith, a black female. The detective’s notes identify April Smith as such: “B/F April Smith,” and “April B/F skinny $20 1 rock in plastic, Smith 40s.”

So far, so good… except for the many small details that collaborated to ensure the recording was useless.

Because the audio recorder had no batteries, it failed to record the transaction. And because the camera wired to Lynch pointed in the wrong direction, the video recording did not capture the drug sale. The video instead shows an unidentified black woman sitting on a front porch, and two other individuals standing on the porch.

Sending out someone to collect recordings and ending up with something approaching hearsay isn't the best way to begin an investigation. But that didn't stop Munday from moving slowly and fitfully towards an arrest he had no probable cause to make.

At some point during the next nine months, Munday scanned police databases for residents of Lincoln County named April Smith with criminal records. He then stumbled upon April Yvette Smith, a black woman who lived in Lincoln County and had been convicted of selling crack cocaine in 1993, 1997, and 2005. His search also revealed at least two other April Smiths with criminal records. He had no indication that the woman who sold crack cocaine to Lynch in March 2009 had a criminal record, or was even a Lincoln County resident. And the record reflects no further attempt by Munday to investigate Smith or connect her to the crime.

Having wrapped up his ultra-cursory investigation, Munday applied for an arrest warrant, snagging one of the April Smiths he had come across during his desktop browsing -- nine months later and eleven miles away from the site of the drug sale that wasn't properly recorded.

April Smith spent the next 80 days in jail, facing potential prosecution. Munday presumably went back to half-assing his way through his law enforcement career.

The lower court granted Munday immunity, stating that probable cause existed to arrest pretty much any April Smith who fit at least part of the description. The Appeals Court disagrees.

[E]ven ignoring Smith’s weight, a criminal history, common race, common gender, and unfortunately common name is not enough to establish probable cause.

[...]

When applying for an arrest warrant, Munday simply did not have enough information for any reasonable or prudent person to believe there was probable cause. He lacked any information connecting Smith’s conduct to the contours of the offense, and certainly lacked enough evidence to create any inference more than mere suspicion.

As the court points out, Munday did nothing that even approached the definition of "investigation." All he did was browse a criminal record database and decide someone named April Smith was going to get a rap and a ride. For all the policework that went into this, Munday may as well have used a dartboard to generate his "probable cause."

[T]o find the offender, Munday merely ran a broad search in the department’s database of individuals with criminal histories, looking for a woman of the same name. And when he found multiple individuals, at least two of whom were black women named April Smith weighing between 130 and 140 pounds, he chose one for no immediately apparent reason.

[...]

There is no evidence that Munday attempted to identify Smith as the black woman in the video footage. There is no evidence that the officers showed Lynch a photo of Smith to establish the identification. There is no evidence that the officers investigated Smith herself, or found any indication that Smith frequented the site of the drug sale that day, that month, or at all. Indeed, there is no explanation whatsoever for the nine-month delay between Lynch saying a black woman named April Smith sold crack cocaine to him and the issuance of an arrest warrant for April Yvette Smith.

Citing a previous case handled by this circuit, the Appeals Court calls Officer Munday out for his abject failure to perform any investigative work whatsoever before moving forward with an arrest.

“Horner was ‘not required to exhaust every potentially exculpatory lead or resolve every doubt’” to show probable cause. Id. at 190 (quoting Miller v. Prince George’s County, 475 F.3d 621, 630 (4th Cir. 2007)). But he still had to conduct some level of investigation. And he did. Munday conducted none.

And so, the court concludes Munday can't have the immunity granted to him by the lower court. The warrant he applied for was so lacking in probable cause, the court cannot possibly extend him this legal nicety.

[E]ven a glance shows that Munday was unreasonable if he believed he had probable cause. Smith did have a criminal history for possessing and selling cocaine. But as discussed above, Munday had no evidence about her conduct whatsoever, let alone any evidence connecting her to the crime in question. It would be unreasonable for any officer to view Munday’s dearth of evidence as sufficient to establish probable cause. As a result, qualified immunity does not apply.

Because Munday failed to do his job, April Smith (allegedly) lost hers. Smith has already faced the consequences of Officer Munday's actions. Now, it's Munday's turn.

Filed Under: 4th circuit, april yvette smith, immunity, jason munday, police

Court Says Police Chief's Social Media Policy Violated The First Amendment

from the shut-up,-he-updated dept

While holding a position as a government employee can somewhat narrow your protected speech options, it doesn't mean your Constitutional rights are far closer to null and void than the average citizen's. The Fourth Circuit Court of Appeals, affirming a lower court's ruling, has found that a police department's social media policies have been treading too heavily on officers' First Amendment rights.

In early 2013, Chief John Dixon of the City of Petersburg (VA) Police Department revised the department's social media policy, adding two provisions. The preamble to the new rules set the tone. From the decision [PDF]:

The preface to the revised policy prohibits in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.”

The first addition, supposedly supported by "established case law," notes that a very specific type of speech will not be tolerated.

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause…

The second addition to the social media policy graciously "allows" officers to discuss general things about their job, so long as no one else in the force decides the comments are "disruptive."

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.

These additions to the policy were applied to comments made by two officers, who made negative comments on their own Facebook pages about the PD's tendency to promote rookie cops to supervisory positions. Chief Dixon was notified of these comments and decided they violated the new policy. He placed both officers on probation for six months.

Several weeks later, Chief Dixon made more alterations to personnel policies, changing the promotion procedures to immediately disqualify anyone currently on probation. The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned. The lawsuit followed, alleging retaliation for exercising their First Amendment rights.

The Appeals Court finds the policy not only infringes on the First Amendment rights of the officers, but discourages discussion of issues of public concern. Those two factors outweigh any perceived "disruption" that may have resulted from the officers' publicly-posted comments.

While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.

Further, the court finds that -- unlike the lower court -- that Chief Dixon can't avail himself of qualified immunity. Because the policy was facially unconstitutional, any disciplinary actions taken were similarly improper.

We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense.

As the Appeals Court points out, to allow such a policy to remain intact would harm both the law enforcement agency and the public it serves.

Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.

The court finds nothing to back up the officers' retaliation claims, but does send it back to the lower court to determine a remedy for the violation of the officers' First Amendment rights.

Courts have long noted that public sector employees don't immediately give up their First Amendment rights just because they've opted to work for the government. Chief Dixon's "case law-supported" policies were put in place to discourage criticism of his department, which is never a good reason for instituting restrictive social media policies.

And so much for the "support" of "established case law." Two courts in a row seem to have found plenty of case law to the contrary.

Filed Under: 4th circuit, first amendment, free speech, john dixon, petersburg, petersburg police department, police, social media policy, virginia

Appeals Court Says It's Perfectly Fine For The DOJ To Steal Kim Dotcom's Money Before Any Trial

from the this-is-pretty-fucked-up dept

Last year, there was a series of very troubling rulings by a district court in a case related to the criminal prosecution of Kim Dotcom. This wasn't, technically, part of the actual criminal case against him, but rather a separate effort by the government to steal his money. We've been covering the ridiculous process of civil asset forfeiture for a while, and it's really problematic in general. In Dotcom's case, it's something of a farce. Remember, civil asset forfeiture is the situation where the US government effectively files a civil (not criminal) lawsuit against inanimate objects, rather than people. In this case, it basically filed a lawsuit against all of Kim Dotcom's money, arguing that it was the proceeds of a crime and therefore, the government should just get it all. Again, this is entirely separate from the actual criminal trial of Kim Dotcom, which has been put on hold while the extradition battle plays out in New Zealand (determining if Dotcom can be forcibly sent to the US to stand trial).

Just the whole process of civil asset forfeiture is troublesome enough. As we've detailed over and over again, it's basically a system whereby law enforcement gets to steal money and other stuff (cars are popular) from people, simply by claiming that they were used in a criminal endeavor. Since the lawsuit is against the stuff, if people want it back, they have to go and make a claim on it, and it's a fairly convoluted process. In this case, things were even more ridiculous, because the government argued that because Dotcom was resisting extradition from New Zealand, he could be declared "a fugitive" and the judge overseeing the case (the same one overseeing his criminal case, Judge Liam O'Grady) agreed. That effectively meant that Dotcom had no legal right to protest the government simply taking and keeping all of his assets -- and they moved forward and did exactly that.

It is difficult to see how this can be legitimately described as anything but theft by the US government. It got someone locked up in New Zealand, based on questionable legal theories, and while he was (quite reasonably) fighting extradition to the US (a place he's never visited and where he has no business ties), it initiated a separate legal process to keep all his money, no matter what happens in his extradition fight and criminal trial. On top of that, it effectively barred him from making an official claim on that money by having him declared a fugitive for exercising his legal due process rights to fight extradition. So while he exercises his legal due process rights in New Zealand, he's blocked from doing so in the US. And all of his money goes to the US government.

As we said after O'Grady's ruling came out, even if you think that Dotcom is guilty of a criminal copyright conspiracy, and even if you think he should be extradited, tried and locked up this should concern you. Let him go through the full legal process, with all that due process entails, and then determine what should happen to his assets. To take them before that's happened, through this questionable side process is immensely problematic.

And that's why Dotcom appealed, and many others -- including a bunch of criminal defense lawyers -- stepped in to argue this was crazy. Unfortunately, earlier today, the 4th Circuit Appeals Court upheld O'Grady's ruling and rubber stamped the DOJ's legalized theft of Dotcom's assets. You should read the 61 page opinion (which was a 2 to 1 decision, with an interesting dissent), but we'll hit on some of the low points here.

There were a number of different arguments raised -- with a big one not just being the basic due process question, but a jurisdiction question. Dotcom's assets are not in the US. His work was not in the US. So why does the US get to seize the money. The majority opinion basically says "because that's what Congress wanted -- it created this law to let the US government seize overseas assets." The opinion admits that there's a bit of a circuit split on this, but goes for it anyway.

When the amendments were introduced in the Money Laundering Improvements Act, Senator D’Amato included an explanatory statement indicating that subsection (b) was intended to provide the federal district courts with jurisdiction over foreign property:

Subsection (b)(2) addresses a problem that arises whenever property subject to forfeiture under the laws of the United States is located in a foreign country. As mentioned, under current law, it is probably no longer necessary to base in rem jurisdiction on the location of the property if there have been sufficient contacts with the district in which the suit is filed. See United States v. $10,000 in U.S. Currency[, 860 F.2d 1511 (9th Cir. 1988)]. No statute, however, says this, and the issue has to be repeatedly litigated whenever a foreign government is willing to give effect to a forfeiture order issued by a United States court and turn over seized property to the United States if only the United States is able to obtain such an order.

Subsection (b)(2) resolves this problem by providing for jurisdiction over such property in the United States District Court for the District of Columbia, in the district court for the district in which any of the acts giving rise to the forfeiture occurred, or in any other district where venue would be appropriate under a venue-for-forfeiture statute.

This is the point that the dissent disagrees on, and argues that the forfeiture should be blocked on jurisdictional questions alone. The key, according to Judge Henry Floyd, is that court decisions must be binding on parties, and not advisory. But that doesn't work when you're talking about an opinion concerning assets overseas, which will still then depend on the local government where those assets live to abide by the ruling.

The majority side-steps this concern by cabining it to the separation of powers context. One of the basic tenets of what constitutes a “case or controversy” cannot be elided so. The defendant in this action--the res--is outside of the United States and beyond the control of the district court. Absent control, no order of the district court can be binding on the res because the fate of the res is ultimately not in the hands of the district court. Instead, the res in this case is subject to the control of the courts of New Zealand and Hong Kong. The district court’s forfeiture order therefore merely advises the courts of a foreign sovereign that (in the district court’s view under the laws of the United States) the United States should have title to the res. Those courts, of course, with control of the res and with the authority vested in them by their own sovereigns, remain free to revise, overturn, or refuse recognition to the judgment of the district court.

As Judge Floyd notes, this makes the opinion nothing more than an advisory opinion, which is prohibited by Article III of the Constitution (concerning the powers of the judiciary).

Back to the majority opinion, the court rejects the argument that this process to steal Dotcom's money without letting him defend himself violates the Due Process Clause of the Fifth Amendment. First, the court says that because some of Megaupload's servers were based in Virginia, the jurisdiction is fine. Then, the court accepts the lower court's decision that Dotcom can be called a "fugitive" even as he's both in contact with the court and going through a perfectly legal process around extradition in New Zealand. Somewhat incredibly, the court decides that because he's resisting extradition, that's the same thing as being a fugitive hiding out. That... should be troubling for a whole variety of reasons. Basically, the court says that due process means that Dotcom has the right to be heard protesting the forfeiture, but that the only way to do that is to stop fighting extradition. It gets down in the weeds parsing the law in determining what the right standard is for determining if fighting extradition counts as being a fugitive, and decides that this was Congress' intent with the law -- that so long as the person is avoiding court, even if for reasons relating to the legality of extradition, they can still be declared a fugitive.

The claimants’ argument that they have legitimate reasons to remain where they are, such as jobs, businesses, and families does not disprove that avoiding prosecution is the reason they refuse to come to the United States.

I imagine that Dotcom's lawyers will now try to fight this as well -- seeking either an en banc rehearing or petition the Supreme Court to hear the case. Both are pretty risky, with a fairly high probability of being rejected. And, of course, as the dissent pointed out, there's still one other hurdle for the DOJ: the assets are held in Hong Kong and New Zealand, and they now need to convince authorities in those two places to hand over the money. And, as of right now, it's not clear if they'll actually let it happen.

Again, no matter what you think of Dotcom's actual criminal case, this result should be concerning to you. The use and abuse of civil asset forfeiture is the real issue here -- not the copyright questions. The ability of the US government to simply take millions of dollars based on accusations and without a guilty verdict in a trial should be tremendously worrying. If a full trial happened and he was found guilty, then there's a reasonable argument that, as a result of that, the money can be forfeited. But it's extremely problematic that the money can be forfeited in these circumstances, before the rest of the legal process has occurred. Under this ruling, even if Dotcom came to the US and was found not guilty, the US government would still keep all his stuff. Can anyone explain how that would be a fair and just result?

Filed Under: 4th circuit, article iii, asset forfeiture, civil asset forfeiture, copyright, doj, due process, hong kong, jurisdiction, kim dotcom, new zealand
Companies: megaupload

Appeals Court Tells City It Can't Use Its Terribly-Written Zoning Laws To Censor Speech

from the the-aesthetic-value-of-shutting-someone-up dept

Here's a fun free speech win from the 4th Circuit Appeals Court. Well, it's at least a fun read, especially when the judges go after the city of Norfolk's highly-questionable claim that its completely inconsistent zoning statute isn't loaded with content-based restrictions.

First, though, here's a bit of background. Norfolk's Central Radio Company's building was on the list of places to be destroyed by the city to make way for an expansion of Old Dominion University. To protest this plan, it hung a large sign on the side of its building stating its opposition to eminent domain abuse.

It also protested the university's planned expansion by suing it, ultimately undoing the government's plan to demolish CRC's building.

The city, tipped off by an Old Dominion employee, decided to "investigate" the company's sign and, of course, found it to be in violation of city advertising statutes.

This prompted another lawsuit from the Central Radio Company, this time seeking to have the ordinance found unconstitutional. Unfortunately, it wasn't quite so lucky this time. The district court found the statute did not infringe on the company's First Amendment rights. The Fourth Circuit Court of Appeals agreed.

CRC petitioned the Supreme Court. Its timing was fortuitous. The Supreme Court had recently handed down a decision in a similar case (Reed v. Town of Gilbert). The decision reaffirmed that government entities cannot impose content-based restrictions without narrowly crafting the limitations to "further a compelling government interest."

The US Supreme Court booted the case back to the appeals court with instructions to apply its recent Reed decision. Taking this into consideration, the Appeals Court finds in favor of Central Radio Company and isn't too impressed with Norfolk's ill-advised attempt to censor content that didn't agree with its eminent domain plans.

Based on Reed, we hold that the City’s regulation was a content-based restriction of speech. The former sign code exempted governmental or religious flags and emblems, but applied to private and secular flags and emblems. In addition, it exempted “works of art” that “in no way identif[ied] or specifically relate[d] to a product or service,” but it applied to art that referenced a product or service. On its face, the former sign code was content-based because it applied or did not apply as a result of content, that is, “the topic discussed or the idea or message expressed.”

Because of the internal inconsistencies in the statute (which has since been rewritten), the government can't claim its restrictions aren't content-based. Those assertions have been undone by the city's inability to craft a coherent policy. The law was supposedly put in place to improve the city's aesthetics and cut down on distracted driving. According to the city of Norfolk, these two things were supposedly "compelling government interests." The court disagrees, finding it to be a badly-written law with severe Constitutional issues.

With respect to the City’s stated interest in preserving aesthetic appeal, for example, the flag of a private or secular organization was “no greater an eyesore” than the flag of a government or religion, id. (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993)), and works of art that referenced a product or service did not necessarily detract from the City’s physical appearance any more than other works of art. Yet, the former sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City’s dubious criterion, while sharply restricting the number and size of flags and art bearing other messages.

[...]

The City also has not shown that limiting the size and number of private and secular flags, as well as works of art that referenced products or services, was necessary to eliminate threats to traffic safety. There is no evidence in the record that secular flags were any more distracting than religious ones, or that a large work of art displaying a reference to a product threatened the safety of motorists any more than any other large, exempted pieces of artwork.

A workable, Constitutional policy wasn't handed down by the city until well after its original statute proved to be a problem. Because the policy has been altered since the filing of the suit in 2012, the court finds no need to issue an injunction. Even if the city wasn't directly trying to censor critical speech (although it certainly appeared to be doing exactly that), the statute was so badly written that it couldn't help but trip over itself. Worse, it put the government in the position of deciding what was or wasn't "approved" art, and implied that art and commerce were mutually exclusive expressions.

"Nominal damages" are on the way to the Central Radio Company, which managed to not only save the building where it has spent the last half-century from destruction, but managed to get a bad law rewritten in the process.

Filed Under: 4th circuit, free speech, norfolk, zoning laws
Companies: old dominion university

Summer Of The 4th Amendment: Appeals Court Says Mobile Phone Location Is Protected Under 4th Amendment

from the secure-in-their-persons,-houses,-papers,-and-effects dept

It appears that the 4th Amendment is up for a bit of a revival this summer. Last week, we wrote about an important ruling in a Northern California district court saying that mobile phone location info -- officially known as "Cell Site Location Info" or "CSLI" -- was protected by the 4th Amendment, meaning the government couldn't scoop it up without a warrant. The ruling was excellent and detailed, but we noted there would be inevitable appeals.

Now, in a similar case that had already been decided the other way, the 4th Circuit appeals court has overturned that ruling and agreed that mobile phone location info requires a warrant. This is another big victory for the 4th Amendment.

Appellants Aaron Graham and Eric Jordan appeal their convictions for several offenses arising from a series of armed robberies. Specifically, Appellants challenge the district court’s admission of testimonial and documentary evidence relating to cell site location information (“CSLI”) recorded by their cell phone service provider. We conclude that the government’s warrantless procurement of the CSLI was an unreasonable search in violation of Appellants’ Fourth Amendment rights.

Unfortunately, the court says that it doesn't matter in this case because of the "good faith" exception. We've discussed in the past the problems of the "good faith exception," which basically says it's okay to violate the 4th Amendment so long as law enforcement doesn't know it's violating the 4th Amendment. From a basic rights perspective, that seems ridiculous. But, at the very least, this ruling still should make it clear that going forward a warrant is necessary.

The appeals court ruling goes pretty much along the lines you'd expect, pointing out that there's an expectation of privacy in the CSLI and therefore a warrant is needed. It rejects the government's assertion that Sprint/Nextel's privacy policy was agreed to by the defendants and thus waived any privacy expectation.

As an initial matter, we are not persuaded that, as the district court stated, Sprint/Nextel’s privacy policy disproves Appellants’ claim that they had an actual expectation in the privacy of their location and movements. The privacy policy in effect at the time Sprint/Nextel disclosed CSLI to the government stated as follows:

Information we collect when we provide you with Services includes when your wireless device is turned on, how your device is functioning, device signal strength, where it is located, what device you are using, what you have purchased with your device, how you are using it, and what sites you visit.

... First, the policy only states that Sprint/Nextel collects information about the phone’s location – not that it discloses this information to the government or anyone else.

Second, studies have shown that users of electronic communications services often do not read or understand their providers’ privacy policies.3 There is no evidence that Appellants here read or understood the Sprint/Nextel policy.

The court relies on a series of relatively recent Supreme Court decisions to make it clear that the 4th Amendment applies in this case:

Taken together, Karo, Kyllo, and the views expressed in Riley and the Jones concurrences support our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual over an extended period of time. Cell phone tracking through inspection of CSLI is one such technology. It is possible that the CSLI for a particular cell phone is not very revealing at all because, for instance, the phone has been turned off or it has made few or no connections to the cellular network. But the government cannot know in advance of obtaining this information how revealing it will be or whether it will detail the cell phone user’s movements in private spaces.... We hold, therefore, that the government engages in a Fourth Amendment search when it seeks to examine historical CSLI pertaining to an extended time period like 14 or 221 days.

It's a good ruling and it looks like the courts are building up a series of rulings on this issue that will inevitably reach the Supreme Court in the near future...

Filed Under: 4th amendment, 4th circuit, csli, expectation of privacy, location info, mobile phones

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

from the uh-oh dept

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.

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