The Supreme Court delivered a setback to New York Times reporter James Risen and to the media industry, as it declined to intervene in a case in which Risen was subpoenaed to testify about a confidential source, the Washington Post reports. That sets up a clash between Risen and the Justice Department, which has sustained a great deal of criticism for its handling of media outlets. Last year, the Associated Press said its phone records had been seized without its knowledge as part of a leak investigation.
DOJ issued new guidelines for approaching news organizations in such situations. Attorney General Eric Holder said last week, “As long as I'm attorney general, no reporter will go to jail for doing his job.” Media lawyer Ted Boutrous said Holder's proclamation may have “taken the wind out of the sails” of Risen's attempt to secure Supreme Court review. That's too bad, says: It was 1972, after all, when the controlling Supreme Court case for journalist testimony — Branzburg v. Hayes, a decision that has prompted conflicting interpretations — was decided. “Forty-two years is long enough,” says Boutrous. A federal appeals court, ruling against Risen, said, “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.”