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Appeals court: Reporter can't protect source

| Friday, July 19, 2013, 8:51 p.m.

A New York Times reporter whose book is at the center of a criminal leak case against a former CIA officer accused of being one of his sources cannot invoke a reporter's privilege and refuse to testify at the officer's trial, a federal appeals court ruled on Friday.

In a divided decision that will probably rile journalists across the country, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit ruled that reporter James Risen can be forced to testify at the trial of former CIA officer Jeffrey Sterling, who is charged with 10 felony counts in a federal leak case. The majority of judges ruled, effectively, that neither the First Amendment nor common law offer protection to journalists who promise anonymity to their sources from having to testify about them in criminal proceedings.

“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,” Chief Judge William Traxler wrote.

The decision was not unanimous. Judge Roger Gregory wrote in a dissent that “freedom of the press is one of our Constitution's most important and salutary contributions to human history.” He argued that case law had established a sort-of “reporter's privilege” not to reveal sources in certain instances, taking into consideration “the harm caused by the public dissemination of the information” and the “newsworthiness.”

“Even in ordinary daily reporting, confidential sources are critical,” Gregory wrote.

Some experts said the ruling essentially affirms the status quo, while news media advocates said it might have a chilling effect on the willingness of people to leak information in a climate where leakers already are vigorously pursued.

“It won't encourage people to come forward, but the chill was already on,” said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press.

Joel Kurtzberg, Risen's attorney, said in a statement that Risen is evaluating his next steps.

“We are disappointed by and disagree with the Court's decision,” he said.

Sterling, a former CIA agent who was assigned to a classified program meant to impede Iran's efforts to acquire nuclear weapons, was indicted in 2010 for unauthorized retention and communication of national defense information, obstruction of justice and other counts. He is accused of being a source for Risen's book, “State of War.”

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