BOB GARFIELD:  This week, the Supreme Court said it would not intervene on behalf of New York Times reporter James Risen, who could go to jail for refusing to identify a confidential source. Risen was subpoenaed to testify in the government's case against former CIA officer Jeffery Sterling, who was charged with leaking classified information. The government says Sterling is the source for a chapter in Risen’s 2006 book, State of War, and it needs Risen to confirm that in court. At issue here is the question of “reporter's privilege”, essentially whether a journalist should be legally protected from having to testify about confidential information or sources. In the 1972 landmark case, Branzburg v. Hayes, the High Court ruled that “reporter's privilege” is not constitutionally protected and has chosen not to readdress the question for Risen.  

But, as University of Chicago Law Professor Geoffrey Stone points out, Branzburg does not preclude laws to protect journalists from having to rat out their sources.

GEOFFREY STONE:  And, in fact, in the year since Branzburg, 49 states and the District of Columbia have enacted laws that in varying degrees guarantee journalists just such a privilege.

All the Court held in Branzburg is that the First Amendment of its own force does not provide that protection.

BOB GARFIELD:  Now, the Obama administration is in a rather strange position. On the one hand, it has prosecuted leakers and subpoenaed journalists at historic rates, but Attorney General Eric Holder has said that he has no interest in putting journalists behind bars. What are the options for the government to have its way, without acting egregiously against a journalist just doing his job?

GEOFFREY STONE:   Well, if the government pursues the matter, they would not say they were acting egregiously. They would basically say that here it’s not about the journalist simply receiving classified information, it’s the journalist being in possession of critical knowledge that is necessary to enable the government to prosecute someone who violated laws dealing with the national security. The administration clearly does not want to be put in – James Risen in prison, doesn’t want to do that.

On the other hand, it doesn’t want to give individuals with access to classified information the notion that they have a free ride if they want to leak classified information, because if they give it to a reporter, the reporter can never be required to reveal their identifies and, therefore, they might as well just leak information whenever they feel like it. This is not necessarily about the harm done to the national security by any particular leak, it’s the fact that people who have access to classified information are not allowed to leak. And from their standpoint, that’s what has to be stopped.

BOB GARFIELD:  The Senate passed a bill which would have provided Federal shield protection for journalistic privilege, and it got nowhere in the House. But what would its provisions have been had it passed?

GEOFFREY STONE:  Well, it would have given substantial protection to journalists in the context of ordinary criminal investigations. And that’s critical, and that’s the vast majority of circumstances nationally in which this issue arises.

On the other hand, it gave the government much greater authority to override a claimed privilege when national security issues are at stake. So whether it would have protected Risen or not would depend on the specific facts of the case, but my guess, reading the statute, is that it probably wouldn’t have protected Risen in this situation. And my own view, for what it’s worth, is that journalists should have a privilege, and that privilege should apply even in national security cases, unless the government can demonstrate that overriding the privilege is necessary, not merely to convict a leaker but also to protect against future dangers to the nation.

BOB GARFIELD:  Great idea. All we have to do then is determine who, in a world where anybody can publish with a smart phone, actually is a journalist. It’s not quite as clear cut [LAUGHS] as it was in the analog “good old days.”

GEOFFREY STONE:  Well, this is one of the two issues that have really hung up the Congress. One of them is the question of when is a journalist protected when national security is an issue. All the states that have adopted shield laws don’t really face the problem of national security in the same way.

And the second one, of course, is well, who gets to claim the privilege? And there are different interest groups that have strong positions there. The sort of established, well recognized media are perfectly comfortable with a rule that basically protects them but, obviously, there’s a whole new world of media, including people like myself, who write blogs periodically, who say, “Hey, I’m a journalist, I should be able to have the same privilege, and so should every Tom, Dick and Harry.”

You know, my own view is that the idea of this privilege is to be able to have the source know that there are people to whom she can go who can protect her confidentiality. It doesn’t require that everybody who would like to be called a journalist has that privilege. What matters is that if you want to get information out to the public, and that’s the reason for allowing the privilege, that there are people who are reasonably well identified who, individuals who want to communicate to the public are able to go to.

Most states have managed this problem without too much difficulty. They’ve defined who’s covered by it in all different ways, from one state to the other, and that’s not really been a terrible problem. And there are going to be winners and losers out there, but that shouldn’t be the critical issue for the Congress. They should be able to resolve that the way 49 states have managed to resolve it. There’s no right or wrong answer, but you just have to draw a line and it’s going to be somewhat arbitrary.

BOB GARFIELD:  Okay, I’d like to ask you this question:  [LAUGHS] What’s gonna happen here?

GEOFFREY STONE:  You know, it’s a great question as to what’s gonna happen here. At some point, either the administration is going to let Risen take a pass, and that presumably will make it impossible for the government to convict this individual, or they will insist that Risen disclose the information, and he will refuse to do so, and he will be held in contempt, and he will go to jail for a period of time. Then they’ll say, okay, we’re done, and they still won’t get the information they want. So it’s kind of a no-win situation on both sides. You know, the administration’s concern is not only that they won’t be able to convict this particular individual, but that if they can’t convict him that will essentially invite others who would engage in illegal leaks to do so with the knowledge that they can be protected and that they’ll never get caught.

Understandably, from the government’s perspective, that’s a bad outcome. The government clearly doesn’t want to put, you know, a New York Times journalist in jail but, you know, my guess is, if push comes to shove, they’ll do that.

BOB GARFIELD:  Jeff, thank you very much.

GEOFFREY STONE:  My pleasure.

BOB GARFIELD:  Geoffrey Stone is professor of law at the University of Chicago.

  [MUSICAL TONES/UP & UNDER]