The James Risen case in concerning and confusing. That the Supreme Court has refused to hear his case is frustrating. I don’t understand Attorney General Eric Holder’s position on the case. He said just last week that wouldn’t allow any reporter to go to jail for “doing their job,” which he considers to include protecting the identity of their sources. So, why are prosecutors trying to compel Risen to testify? What are they going to do if he refuses, as he has promised to do? If a judge finds Risen in contempt, as they are obligated to do, how is Eric Holder going to prevent Risen from going to jail?
Maybe some of you have answers to these questions, but I don’t.
On May 29th, Rep. Alan Grayson pushed through an amendment to the Commerce, Justice, Science, and Related Agencies Appropriations Act that “prohibits the Department of Justice from using funds to force journalists to testify about information or sources.” He will, of course, need the overall bill to pass and for his amendment to survive the reconciliation process with the Senate version. I think the law is clearly needed, although I don’t think this is the optimal way to protect a free press. A simple law stating that a reporter cannot be compelled to reveal a source would be better than having Congress dictate the behavior of prosecutors.
I’m willing to listen to arguments against a simple ban on forcing reporters to reveal their sources, and I suppose people can come up with ticking time-bomb scenarios. My position on that is that you don’t legalize torture and if you find yourself in a ticking time-bomb situation and feel that you need to torture, then you can plead your case to the courts and to the public. They’ll forgive you if you deserve forgiving. Likewise, if you present a reporter with a true ticking-bomb scenario, they’ll almost definitely reveal their source voluntarily. We don’t need to make a provision for such a scenario in law.
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