James Risen
James Risen

WASHINGTON — The Supreme Court on Monday turned down an appeal from 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 the reporter, James Risen, seeking information about his source for a chapter of his 2006 book “State of War.” Prosecutors say they need Risen’s testimony to prove that the source was Jeffrey Sterling, a former CIA official.


The US Court of Appeals for the Fourth Circuit, in Richmond, Va., ordered Risen to comply with the subpoena. 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,” Kurtzberg said in an e-mail. “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, the administration 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 the Justice Department might not ask the trial judge to jail Risen for contempt should he refuse to testify. The 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 shield law that would allow judges to quash some subpoenas to journalists. The Justice Department has also issued internal regulations limiting the circumstances in which prosecutors can subpoena reporters’ testimony and records.

Dean Baquet, the executive editor of the Times, said the court’s decision not to hear Risen’s case was disappointing. “Journalists like Jim depend on confidential sources to get information the public needs to know,’’ Baquet said. “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.”

The case against 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 Risen’s book described the operation.

In 2011, Judge Leonie M. Brinkema largely quashed the subpoena to Risen. A divided three-judge panel of the appeals court reversed the ruling, relying on the Supreme Court’s Branzburg decision. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote.


In another matter Monday, the Supreme Court said it will consider whether Republican leaders in Alabama drew a new legislative map that illegally packed black voters into too few voting districts to limit minority political power.

The justices agreed to hear a pair of appeals from the Alabama Legislative Black Caucus and another group of Democratic lawmakers who contend the new map created in 2012 dilutes black voting strength and makes it harder to elect white Democrats outside the overwhelmingly majority-black districts.

Joe Reed, chairman of the Alabama Democratic Conference, said the Republican-designed districts were contrived to reduce minority influence in surrounding, mostly white districts.

A panel of three federal judges had ruled 2-1 last year that the new districts were not discriminatory.