United States v. Sterling
818 F. Supp. 2d 945
E.D. Va.2011Background
- Government subpoena seeks Risen’s trial testimony about source identity, timing, location of disclosures, and to authenticate State of War, at Sterling's criminal trial.
- Risen moved to quash based on the qualified First Amendment reporter’s privilege; government argued no privilege or not applicable due to lack of confidentiality or harassment.
- Grand jury history: prior subpoena (2008) and partial quash/reconsideration, with waiver as to some information after Sterling’s name disclosure; second grand jury subpoena issued (2010) seeking broad information about Chapter 9.
- Evidence suggests Sterling disclosed classified information to Risen; records show phone calls, emails, and meetings, and witnesses indicating Sterling as Risen’s source for Chapter 9.
- Court acknowledged the Fourth Circuit recognizes a qualified reporter’s privilege balancing test (LaRouche) and applied it to determine whether Risen may be compelled to testify about his reporting and sources, including a limited authentication role.
- Court ultimately limitations: quash testimony about source identity for Chapter 9, but allow testimony to authenticate the book/article content and to confirm that unnamed/identified sources made certain statements, under protective order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a qualified reporter’s privilege apply to a criminal trial subpoena? | Risen: privilege protects confidential sources from testimony. | Sterling: government lacks need given no confidentiality/ harassment. | Yes; privilege applies if sources confidential or subpoena issued to harass. |
| Scope of the privilege—does it cover testimony about disclosures and time/place with sources? | Risen: confidentiality extends beyond name to details enabling source identification. | Sterling: scope should be narrow to protect confidentiality. | Protected; testimony about timing/placement tied to source identity is privileged, but limited authentication allowed. |
| Under LaRouche, is there a compelling government interest justifying compelled testimony? | Government: testimony necessary to prove venue, elaborate case, and efficiency. | Rises: no compelling interest; information available from other means. | No; government failed to show compelling interest; information obtainable by alternatives. |
| Is the information available by alternative means sufficient to outweigh the privilege? | Risen: still uniquely places to identify sources; no alternatives. | Sterling: record shows other evidence (emails, calls, witnesses) sufficient. | Weighing against privilege; substantial alternative evidence exists; weight favors quashing source-identity testimony. |
| May Risen authenticate his reporting at trial without waiving the privilege on source identity? | Risen: authentication necessary for admissibility; limited scope. | Sterling: authentication should be broader. | Authentication allowed in limited scope under protective order; does not waive privilege over sources. |
Key Cases Cited
- Branzburg v. Hayes, 406 U.S. 665 (U.S. 1972) (no per se journalist privilege in Branzburg framework)
- LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986) (three-part balancing test for reporter’s privilege)
- Ashcraft v. Conoco, 218 F.3d 282 (4th Cir. 2000) (reaffirms qualified privilege and balancing; sources’ confidentiality protection)
- In re Shain, 978 F.2d 850 (4th Cir. 1992) (limits on privilege when no confidentiality or harassment present)
- United States v. Lindh, 210 F.Supp.2d 780 (E.D. Va. 2002) (recognizes applicability of reporter’s privilege in criminal case with confidentiality/harassment factors)