The two issues raised in the case were:
(1) Whether journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial; and (2) whether a federal common law privilege should be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial.
In a complex array of vote lineups on various aspects of the main opinion, the Circuit Court (led by Chief Judge William B Traxler, Jr. and joined in some parts by Judges Albert Diaz and Roger Gregory) ruled against James Risen. The Chief Judge declared that “there is no First Amendment testimonial privilege, absolute or qualified, that protects reporter from being compelled to testify in criminal proceedings about criminal conduct that reporter personally witnessed or participated in, absent showing of bad faith, harassment, or other such non-legitimate motive, even where reporter has promised confidentiality to source; in present case, federal trial court erred by quashing trial subpoena issued to journalist who allegedly received classified information about covert operation from former CIA case officer, in criminal prosecution of that individual for disclosure of classified information, since there is no First Amendment reporter’s privilege in criminal cases.” The Chief Judge also noted that there was no federal common-law reporter’s privilege protecting confidential sources, and if there were one the federal government would have satisfied it in this case.
Joel Kurtzberg of Cahill Gordon and Reindel filed the cert. petition on behalf of Mr. Risen. Lee Levine of Levine Sullivan Kock and Schulz filed an amicus brief on behalf of ABC and other media groups in support of the Petitioner. And Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression also filed an amicus brief in support of the Petitioner.