Journalists Subpoenaed by Federal Courts

Wolf v. United States of America, 201 Fed. Appx. 430 (2006)

What happens when a subpoena is not issued by a state court but a court on the federal level? Josh Wolf, a video blogger, had been in jail for 226 days for refusing to testify before a grand jury and making his videotapes available to prosecutors. In July 2005, Wolf took videos of an anti-G8 anarchist protest in San Francisco. The United States District Court for the Northern District of California formed a grand jury to determine whether some protesters in the demonstration should be charged. Federal prosecutors believed Wolf’s video takeouts can help to identify demonstrators. The district court subpoenaed Wolf to testify before the grand jury and turn over his unpublished videos while Wolf refused to comply. The district court held contempt of court and the United States Court of Appeals for the ninth circuit confirmed the order. Wolf was finally released after he posted the unaired videotape on his website. In its decision, the Court of Appeals indicated that even conducting a balance test still supported the judgment of the lower court as Wolf took videos of people in public place and “Wolf does not claim that he filmed anything confidential nor that he promised anyone anonymity or confidentiality”. Specifically, the Court of Appeals pointed out even the shield law in California does not uphold Wolf in this case as Wolf could not prove he was a reporter who was “connected with or employed” by a news media.

Judith Miller showed support for Josh Wolf

Judith Miller and the Plame Affair

The lack of reporter’s privilege on the federal level is not a new topic and the First Amendment protection for this privilege is further attenuated when it conflict with government interest of protecting national security. Although the time Josh Wolf spent in jail is the longest in history for a journalist who refuses to disclose sources, Judith Miller’s 85 days in prison is no less impressive and even more influential. Judith Miller, then New York Times reporter, refused to testify before a grand jury that was set up for investigating the Plame Affair, the case of leaking the name of a CIA officer. While Miller did not use information from the source to write, prosecutors believed she had evidence closely related to the case. In October 2004, judge of the United States District Court for the District of Columbia found Miller in civil contempt of court by refusing to disclose source of her story and sentenced her into prison. The United States Court of Appeals for the District of Columbia Circuit affirmed the district court’s decision and the U.S. Supreme Court declined petition from Miller. Miller was released after she agreed to disclose the identity of her source before the grand jury in United States v. Libby and discussed her conversations with I. Lewis Libby, Vice President Dick Cheney’s chief of staff, as a witness after Libby relieved her from agreement of confidentiality. In its judgment, the district court held that protection of journalist’s confidential sources is not offered either by the First Amendment or the federal common law “in the context of a grand jury investigation”. The Court of Appeals further concluded that a common-law privilege for reporter is not absolute even if it exists and the filings of the Special Counsel in this case overcame this privilege (In Re: Grand Jury Subpoena, Judith Miller (397 F.3d 964 at 983).

Judith miller talked about her case and consequences of protecting confidential sources

United States v. Sterling, 724 F.3d 482 (2013) 

United States v. Sterling, a recent case in which a journalist gets involved reflects concerns similar to that of Judith Miller’s event. In his book State of War, James Risen, a New York Times reporter, wrote stories about CIA’s activities, describing a CIA program “Operation Merlin” that aimed at delaying Iran’s nuclear program. Risen kept communicating with Jeffrey Alexander Sterling, a former CIA employee, while writing this book, according to e-mails and phone records CIA obtained. In December 2010, Sterling was indicted for “unlawful retention and unauthorized disclosure of national defense information” under the Espionage Act of 1917. In May 2011, the government issued a trial subpoena requiring Risen to disclose the identity of his source of information for the CIA activity. The district court quashed the subpoena and found that Risen has a First Amendment reporter’s privilege. However, the United States Court of Appeals for the fourth circuit reversed the lower court’s exclusion of Risen as witness and held that there is no First Amendment or federal common-law privilege protecting Risen from being compelled to testify in this case. The court of appeal stated that Risen even failed to pass the LaRouche Test that grants qualified reporter’s privilege as it is no doubt that information Risen held is relevant and the government has a compelling interest in having Risen testify before the jury. Furthermore, the subpoena was not issued in bad faith or other improper motive. In January 2014, Risen appealed to the U.S. Supreme Court (Sullivan, 2014).

James Risen criticized judgment in United States v. Sterling