Supreme Court’s Pass on Journalist’s Appeal Puts Focus on Federal Shield Law

On Monday the Supreme Court issued a one-line order declining to hear the appeal of New York Times journalist James Risen. A lower court had ordered the reporter to comply with a subpoena requiring him to reveal a confidential source.

The case began after Risen’s 2006 book, State of War, reported on a botched CIA operation that may have given valuable nuclear technology to Iran. During a Justice Department investigation of the operation, Risen was issued a subpoena to testify about a confidential source. He refused.

The case has become a flashpoint for journalists’ frustrations with the Obama administration’s record on press freedom. It’s not clear, however, whether the government will enforce a prison sentence. Risen has been steadfast in maintaining that he’ll go to jail before exposing a source, but Attorney General Eric Holder has implied that the government won’t pursue Risen’s testimony, preventing the journalist from facing a choice between journalistic integrity and jail time. The Times reported that Holder said, on the record, “As long as I’m Attorney General, no reporter who is doing his job is going to jail.” Nonetheless, the Justice Department has made no definitive statement on the matter.

Meanwhile, the Newspaper Association of America has taken this opportunity to draw attention to the Free Flow of Information Act, a Senate Bill that would generally allow journalists to protect the identities of confidential sources in Federal Court, while establishing clear rules for the circumstances in which journalists would be required to reveal their sources. The bill, its proponents say, has more than 50 votes, but before yesterday’s news, at least, it was still short of the 60 votes necessary to overcome a potential filibuster. Supporters of the bill are hopeful that the Court’s failure to hear Risen’s case will provide the traction necessary to bring the bill to a floor vote shortly.

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