The Supreme Court Did James Risen and the First Amendment a Favor

On Monday morning, the Supreme Court declined to hear the case of James Risen, the New York Times journalist who is in contempt of court for not revealing his sources. Quickly, the conventional wisdom emerged that the court, by ending Risen’s appeals, had struck a blow against First Amendment freedoms.

But the decision may have been a blessing for the press and, perhaps, even for Risen, whose stellar reporting unveiled the National Security Agency’s domestic spying activities.

This may be less terrible than it could have been because if the court had taken the case, it almost certainly would have ruled against Risen and emerged with an opinion setting back press rights even more. Right now, the last word on whether journalists have a right of silence, akin to a priest and parishioner or a husband and wife, is a 1971 ruling, Branzburg v. Hayes, that said journalists don’t have such a right under federal law. The lead opinion, penned by the late Justice Lewis Powell and dealing with a Kentucky reporter covering the marijuana trade, was ambiguous enough that First Amendment lawyers have been able to protect journalists in a number of cases over the years.

In the 40-plus years since, the Supreme Court has become more conservative, and there’s no good reason to believe journalists would today get a better ruling from the justices about a federal privilege.

I know a little bit about this. In 2005, I was held in contempt of court in the CIA leak case that led to the outing of Valerie Plame as a CIA agent. As with Risen, lower courts ruled against me, and the Supreme Court declined to take the appeal.

I had great lawyers, such as Ted Olson, Ted Boutrous, Miguel Estrada and Floyd Abrams. But they all knew it was a very tough climb to get the court to take the case. And so it proved to be. Besides the fact that the court had moved to the right, national security was not the best ground on which to fight these battles. And the rise of the Internet made judges unsettled about extending a journalist’s privilege in an age when anyone could call himself or herself a journalist.

As my case was laughed out of court by the D.C. Circuit’s U.S. Court of Appeals, judges kept asking about increasingly far-fetched scenarios in which traitorous nuclear scientists morphed into bloggers so they could hide behind the skirts of the First Amendment. I scribbled a note to a colleague, “Je suis fucked.”

I would have been fucked in the Supreme Court, too, and I fear Risen would also have been. You think an Anthony Kennedy-led 5-4 ruling would have saved the day? Doubt it. Sonia Sotomayor is a former prosecutor. Elena Kagan is a former Department of Justice official. They were anything but sure bets for privilege. Stephen Breyer and Ruth Bader Ginsburg blew off my case last time, so why not this?

At the time, I was told no one on the court was a sure bet for a privilege. And indeed, liberal judges ruled against me up and down the line, although Risen did a bit better. I think it would have been an ugly ruling.

Don’t get me wrong. I would like to see the courts and Congress carve out a journalist’s privilege, and I’ve testified before Congress in favor of that. Forty-nine states have some variation of the privilege, and for the most part it works well. (I was unlucky enough to be in federal court.)

There’s no reason we can’t have a federal privilege, such as through the kind of shield laws that Congress has been considering for a decade. It would be a crime if a good man and stellar reporter like Risen went to the hoosegow for protecting a source for a story that was profoundly in the public interest.

The good news is he may not have to. Attorney General Eric Holder, who was roundly castigated for his handling of the press during his five uneven years as the nation’s top law enforcement official, seems to have seen the light. In a meeting with reporters last week, he said that no journalists should go to jail for doing their job.

Let’s pray he was alluding to Risen. It would be awful for Risen to go to jail. It’d be terrible for Holder’s reputation, a hugely unwelcome distraction for the Obama White House and a terrible lesson for whistle-blowers everywhere. It also emerged this week that the Justice Department went after a Fox News producer to reveal a source—then backed down after a year.

Declining to prosecute Risen may seem like divine intervention, but strange things happen. I never went to jail. My source, Karl Rove, when asked through lawyers, gave me permission to speak. (And my employer’s release of my notes had given up the fight anyway.) Even Paul Branzburg, back in 1971, never went to jail. He’d moved to Michigan, and Kentucky’s efforts at extradition faltered and faded.

Even though I’d love a codified privilege, sometimes ambiguity is better than certainty. And that’s what Risen and the rest of us got today. Right now, most prosecutors aren’t foolish enough to squeeze reporters for sources because they know it’s not worth the trouble. (After all, most prosecutors have political aspirations and would rather not create a martyr.)

I hope the lesson of a heroic figure like Risen is that it still isn’t worth the trouble. Often custom is better than law, and it’s certainly better than bad law, which is undoubtedly what we would have gotten if the Roberts court had taken this case.