WASHINGTON -- The Supreme Court on Monday turned down an appeal from James Risen, a New York Times reporter facing jail for refusing to identify a confidential source.
The court's one-line order gave no reasons but effectively sided with the government in a confrontation between what prosecutors said is an imperative to secure evidence in a national security prosecution and what journalists said is an intolerable infringement of press freedom.
The case arose from a subpoena to Mr. Risen seeking information about his source for a chapter of his 2006 book "State of War." Prosecutors say they need Mr. Risen's testimony to prove that the source was Jeffrey Sterling, a former CIA official.
The 4th U.S. Circuit Court of Appeals, in Richmond, Va., ordered Mr. Risen to comply with the subpoena. Mr. Risen has said he will refuse. "I will continue to fight," he said Monday.
His lawyer, Joel Kurtzberg, urged the Justice Department to hold its fire. "The ball is now in the government's court," he said in an email. "The government can choose not to pursue Mr. Risen's testimony if it wants to. We can only hope now that the government will not seek to have him held in contempt for doing nothing more than reporting the news and keeping his promises" to his sources.
The Obama administration has sent mixed signals in the case and on the subject of press freedom in general. In its Supreme Court brief in the case, Risen v. United States, it told the justices that "reporters have no privilege to refuse to provide direct evidence of criminal wrongdoing by confidential sources." But Attorney General Eric Holder hinted last week that the Justice Department might choose not to ask the trial judge to jail Mr. Risen for contempt should he refuse to testify.
The Obama administration has pursued leaks aggressively, bringing criminal charges in eight cases, compared with three under all previous administrations combined. At the same time, the administration has supported efforts in Congress to create a federal shield law that would allow judges to quash some subpoenas to journalists. The Justice Department has also issued new internal regulations limiting the circumstances in which prosecutors can subpoena reporters' testimony and records.
Dean Baquet, executive editor of The Times, said the Supreme Court's decision not to hear Mr. Risen's case was disappointing. "Jim Risen is a groundbreaking national security reporter who continues to do powerful work," Mr. Baquet said. "Journalists like Jim depend on confidential sources to get information the public needs to know. The court's failure to protect journalists' right to protect their sources is deeply troubling."
The Supreme Court has not directly addressed whether journalists have protections from subpoenas since its 1972 ruling in Branzburg v. Hayes. In that 5-4 decision, the court ruled that the First Amendment provided no such protection against grand jury subpoenas.
Justice Lewis F. Powell Jr. joined the majority but also wrote a short, cryptic concurrence calling on judges to strike the "proper balance between freedom of the press and the obligation of all citizens to give relevant testimony." For decades, press lawyers had considerable success in persuading courts to interpret the concurrence broadly. That run of victories started to wane in 2003, when Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals, in Chicago, surveyed the legal landscape. "A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter's privilege," he wrote.
The case against Mr. Sterling concerns Operation Merlin, a CIA plan to sabotage Iranian nuclear research by having a Russian scientist sell flawed blueprints to Iran. A chapter of Mr. Risen's book described the operation.
In 2011, Judge Leonie M. Brinkema largely quashed the subpoena to Mr. Risen. "A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook," she wrote, adding that prosecutors could prove their case against Mr. Sterling without Mr. Risen's testimony.
A divided three-judge panel of the 4th Circuit reversed, relying on the Supreme Court's Branzburg decision.