Time to Raise the Shield

By: Brittney Cafero ’15 February 17, 2015 On January 26, 2015, Jeffrey Sterling was convicted under the Espionage Act for leaking classified information to a New York Times reporter. This was the latest in a series of prosecutions the Obama Administration has pursued to stop leakers. In two prosecutions of leakers, the federal government subpoenaed the journalist to testify as to his or her source and confidential information. Although all fifty states have a reporter’s privilege that protects journalists if the state government seeks to make them identify a source, there is no federal law to protect journalists. The Sterling case is an example of the shift the federal government has taken under the Espionage Act to require journalists to testify as to their sources. Such a strategy can have a chilling effect both on journalists and sources.

The Sterling case drew attention from journalism groups and civil rights advocates who worried that Sterling’s conviction would chill journalism. Sterling was a former CIA officer who faced charges under the Espionage Act in 2010 for leaking classified information to a New York Times reporter named James Risen. The information was to be used for Risen’s book, “State of War.” It consisted of a secretive plan known as “Operation Merlin” that was designed to undercut the Iranian nuclear weapons program by feeding Iran flawed design material for a nuclear weapons facility. Although the information Sterling leaked was classified, it did not seem to disclose real state secrets. At trial, the government focused on the ways the leaked information might damage the reputation of the CIA. However, reputational harm seems to marginally implicate the Espionage Act since the leaked information makes the government look bad compared to information that results in immediate danger to the U.S. A reputational leak is comparable to the Court’s decision in Pentagon Papers. Once charges were brought against Sterling, the federal prosecutors subpoenaed the journalist, [NYT journalist] James Risen, to testify as to the accuracy of his information and his source. Despite his objections, such as raising “reporter’s privilege,” the Fourth Circuit ordered him to testify because there is no federal shield law for reporters. Risen then appealed to the U.S. Supreme Court, which denied his petition for certiorari. The last time the Supreme Court addressed this issue was in 1972 in the case of Branzburg v. Hayes where the Court held journalists must generally testify as part of grand jury investigations. Ultimately, the prosecution in Sterling decided not to force Risen to reveal his sources, and Sterling was convicted without Risen’s testimony. The fate of Risen and others has spurred the Attorney General to issue policy changes in the Justice Department’s rules for subpoenaing journalists. The former guidelines protected journalists from being subpoenaed who were engaged in “ordinary newsgathering” activities. Now, the new guidelines, protect journalists by requiring prosecutors to seek a high-level review for those engaged in “any newsgathering” activities.

A more direct approach to protect journalists has been initiated at the federal level. In 2013, a bill known as the Free Flow of Information Act was introduced to Congress, but not enacted. Under the proposed law, if a subpoena seeks protected information—such as Risen being subpoenaed—then, the federal government must give the journalist notice, a chance to be heard, and prove its need for the information sought. Ultimately, such a law will help the public have access to information of vital interest. In sum, the Sperling case is an example of the shift the government has taken under the Espionage Act to require journalists to testify as to their sources. The result can have chilling effects on sources and journalists because without protection sources are less likely to go to the press with matters of public importance.