The US supreme court on Monday declined to review a lower court’s order requiring a New York Times reporter to testify in a criminal case against a former source, deepening the court’s silence on the question of protections for journalists and confidential sources.  The move set up a showdown between the courts and reporter James Risen, who has said he will go to prison rather than testify in a case against Jeffrey Sterling, a former CIA officer. Sterling is charged with violating the Espionage Act by allegedly leaking information about a top secret operation to damage Iran’s nuclear program. Risen described the plot, known as Operation Merlin, in a 2006 book.  "I will continue to fight," Risen said in an email to Poynter after the decision was announced.  The rejection of the case by the supreme court marked the latest in a series of refusals by the high court to consider the question of a reporter’s privilege to avoid testifying in order to protect source confidentiality. Lawyers for Risen, who won a Pulitzer Prize for reporting on warrantless government wiretapping, had argued that “the current state of the law is confused” and urged the court to intervene.  Before the court issued its decision Ted Boutrous, a lawyer who filed a friend-of-the-court brief in the case on behalf of the International Women's Media Foundation, said the Risen case had presented an “historic” opportunity to recognize a reporter’s privilege under federal law.  “This case [had] all the makings of an ideal vehicle for deciding the issue,” Boutrous said. “A Pulitzer Prize-winning journalist, writing a book about the government and national-security issues, where we need to have the press be a check on the government, and a watchdog.”  While nearly every state has shield laws or a trail of court rulings protecting journalists, federal court rulings in the last decade have eroded the notion of a reporter’s privilege. The supreme court, meanwhile, has rebuffed the question, declining to take up a 2005 case involving journalists Judith Miller and Matthew Cooper and a 2006 case that also involved Risen.  “Lack of a federal privilege really undermines all the state privileges, because virtually every state has a reporter’s privilege, but if it doesn’t apply in a federal court that makes it less certain,” said Boutrous, who represented Cooper in the 2005 case.  “And it chills journalistic activity and it chills sources as well. And so it really has a nullifying effect on the state privilege laws.”  Risen first wrote about Sterling in March 2002, when he covered a racial discrimination lawsuit that Sterling, who is African-American, brought against the CIA after being fired.  After the story was published, the government contends, Sterling began telling Risen about Operation Merlin, a failed CIA plot to hand Iran a deliberately flawed blueprint for a nuclear warhead. In 2004, Risen told the CIA he was preparing to publish a story about the mismanagement of the operation.  The government convinced the New York Times Washington bureau, then led by editor Jill Abramson, not to publish the story, but Risen later published an expanded version separately, in his 2006 book State of War.  In 2008 Risen was served with a subpoena to testify about his contacts with Sterling. A district court ruled that the reporter should not be required to testify, but that decision was overturned by a 2-1 appeals court ruling in 2013, which found that a reporter’s privilege was guaranteed by neither the First Amendment nor common law.  “If Risen is to be protected from being compelled to testify and give what evidence of crime he possesses, in contravention of every citizen’s duty to do so, we believe that decision should rest with the supreme court … or with Congress, which can more effectively and comprehensively weigh the policy arguments for and against adopting a privilege and define its scope,” chief judge William B Traxler wrote for the appeals court majority.  Lawyers for Risen have argued that the justice department does not need the journalist to testify because there already is ample evidence against Sterling. They also called on the supreme court to clarify the law, asserting that reporter’s privilege is “a matter of the highest importance as to which there is ongoing and irreconcilable disagreement in the lower courts”.  “Unfortunately, as the number of subpoenaed reporters has soared, the law governing the relationship between reporters and their sources has become increasingly less clear,” wrote Risen lawyer Joel Kurtzberg.  “In an area of law where predictability is of paramount importance, the current state of the law is confused.”  Boutrous pointed out in a Wall Street Journal editorial published last week that the current supreme court has shown itself eager to weigh in on First Amendment protections, on issues from campaign finance to violence in video games. It has been hard to understand, Boutrous told the Guardian, why the court would not likewise take up the freedom of the press:  “The fact that the supreme court has been so strong on First Amendment rights, of everyone else in every other context, makes it such an easy transition to say, ‘Well, when people are engaged in journalistic activity, gathering information about the government for purposes of disseminating it to the public – that’s the essence of what the First Amendment protects, and there should be some protection, and we need the supreme court to speak to that.’”
Case of James Risen sets up showdown over reporter rights as lawyer tells Guardian lack of federal privilege 'chills journalistic activity'