The Supreme Court has declined to hear an appeal by a U.S. journalist who has refused to name a confidential source, a move that could result in jail time, should federal prosecutors press ahead with the case.
The case concerns a revelation made in reporter James Risen’s 2006 book “State of War,” discussing U.S. plans to disrupt Iran’s nuclear program. The federal government believes former C.I.A. officer Jeffrey Sterling leaked the information to Risen. There’s a possibility Risen will see jail, but U.S. Attorney General Eric Holder has suggested the federal government won’t go that far to wring the name out of the reporter.
“The ball is now in the government’s court,” Risen’s lawyer, Joel Kurtzberg, told The New York Times in an email Monday.
“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 [to confidential sources].”
Risen, for his part, says he is prepared to go to jail rather than disclose his source.
Confidential sources are essential to investigative journalism. Without guarantees of confidentiality, whistleblowers and others who know newsworthy secrets might never go to the press.
The Obama White House has pursued alleged leakers of classified information with a vigor not seen from previous administrations, even conducting a secret search of Associated Press phone logs last year. The Justice Department only notified the AP after the fact.
This zealous approach alarms free speech advocates and reporters’ rights groups, who fear the administration’s actions could discourage future sources from coming forward.
Prosecutors and defense attorneys at the federal and state level have a long history of seeking to uncover the sources of confidential information. Last year in a Colorado court, defense attorneys went to court over the identity of reporter Jana Winter’s source for a story on the 2012 Aurora, Colo., theater shooting.
Winter, like Risen, refused to give up her source, even under penalty of contempt. A ruling by a New York state court found that Winter, who was based at Fox News in New York, was protected by the Empire state’s “shield law.”
State-level shield laws can protect reporters from having to give up confidential sources, but they’re inconsistent, with some states offering far stronger protections than others. The Obama administration supports a federal shield law. When, or if, Congress crafts such a statute — and whom it will actually cover — remains to be seen.