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Imminent Supreme Court action might heighten need for shield law

 
Those supporting the Free Flow of Information Act -- the formal legislative name for the bill that passed the Senate Judiciary Committee, which would create a federal reporters shield law -- are advised to keep one eye on the Supreme Court in the coming days. That's because the court could decide as early as Monday whether to hear the appeal of The New York Times reporter James Risen from a lower court decision holding that he must testify regarding the source (or sources) of classified information cited and otherwise referred to in his 2006 book "State of War."
 

Those supporting the Free Flow of Information Act -- the formal legislative name for the bill that passed the Senate Judiciary Committee, which would create a federal reporters shield law -- are advised to keep an eye on the Supreme Court in the coming days. That's because the court could decide as early as Monday whether to hear the appeal of The New York Times reporter James Risen from a lower court decision holding that he must testify regarding the source (or sources) of classified information cited and otherwise referred to in his 2006 book "State of War."

 

Risen's book, which discussed "Operation Merlin," an unsuccessful plan waged against Iran's nuclear program, relied on classified information given to him from confidential sources. The U.S. Department of Justice believed the leaks to be unauthorized disclosures of classified information by government employees and eventually initiated criminal proceedings against former CIA agent Jeffrey Sterling. The government subpoenaed Risen to testify in the criminal case. He refused and eventually pleaded his case before the U.S. Court of Appeals for the Fourth Circuit, which ruled there is no First Amendment or common law privilege that protects Risen -- or any other reporter -- from having to testify in a criminal case in federal court. Risen filed a Petition for Certiorari with the U.S. Supreme Court, which will soon decide whether to hear the case. It would be the first time the court has ruled on the extent of the Reporter's Privilege in more than 40 years.

 

A decision by the Supreme Court to "deny certiorari" -- or not hear the case -- enhances the need for a federal shield law. Given that the Free Flow of Information Act has passed the Senate Judiciary Committee, has bipartisan support and would be needed more than ever, we hope that ASNE members would immediately call for the Senate to move S 987 -- that body's version of the Free Flow of Information  Act -- to the Senate floor for a swift vote, which we believe would be successful. We'd then hope the House of Representatives would also pass this bill in short order for signature by President Obama.

 

Join ASNE and more than 70 media companies and organizations in our continuing advocacy for passage of the Free Flow of Information Act. You can learn more by reading our background materials here or by contacting ASNE Legal Counsel Kevin M. Goldberg at 703-812-0462 or goldberg@fhhlaw.com.

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