“We need to be ready to fight”

Media lawyer Ted Boutrous.

By Tony Mauro

Mauro is a member of the Reporters Committee Steering Committee and U.S. Supreme Court correspondent for The National Law Journal.

Lawyer Theodore Boutrous Jr. may be best known these days for his winning ways in headline-making cases on issues ranging from same-sex marriage to class actions and teacher tenure.

But Boutrous — a partner at Gibson, Dunn & Crutcher — is also one of the nation’s top media lawyers, representing television networks, The Wall Street Journal, The Associated Press and many others in cases involving court access, subpoenas and confidential sources. He shot down the biggest libel verdict in history in 1997. He also assisted the Reporters Committee for Freedom of the Press in a cutting-edge 2006 case involving blogger Joshua Wolf.

“My media practice helps me be a better lawyer in my other practice,” Boutrous once said. “It gives me better insight into both sides of the equation.”

In May, Boutrous wrote a forceful column in The Wall Street Journal urging the U.S. Supreme Court to take up the case of journalist James Risen, who was challenging a Justice Department subpoena ordering him to reveal confidential sources he cited in a 2006 book on the Central Intelligence Agency. Ultimately, the court denied review.

In an interview with The News Media & the Law, Boutrous discussed the Risen case and the state of press freedom before the Supreme Court and in general. The transcript follows, edited for length and clarity.

Mauro: You wanted the Supreme Court to take up the James Risen reporter’s privilege case. Were you confident that the current court would recognize such a privilege?

Boutrous: James Risen’s case really exemplifies the need for uniform recognition of a reporter’s privilege at the federal level, and I was confident that if the court granted [cert in] the case it would recognize some sort of reporter’s privilege.

This should not be a difficult call for a Supreme Court that has been a strong guardian of First Amendment freedoms over the last decade. Journalists routinely and necessarily rely on confidential sources to gather information and report on matters of substantial public concern, which is precisely what Risen did in his book, State of War, when he informed the American people of a bungled CIA operation involving Iran’s nuclear program, based on information from a confidential source.

If the court had taken up Risen’s case, it would have been hard-pressed to deny the existence of a reporter’s privilege afforded by the First Amendment or common law. There is now an overwhelming consensus pointing in that direction. Forty-nine states and the District of Columbia, and scores of other democratic countries, recognize some form of privilege for journalists against the compelled disclosure of confidential source information. On top of that, the court’s First Amendment jurisprudence in a wide array of other areas has strongly reinforced free speech protections.

Mauro: Why do you think the Supreme Court declined to take up Risen’s case?

Boutrous: I think the court denied review because the Justice Department did a good job of muddying the waters in opposing the cert petition, arguing that the facts made this a bad vehicle for review and that its new guidelines for subpoenas to journalists made review unnecessary.

And then, right before the court’s conference to decide whether to grant the petition, in what was perceived to be a clear reference to the Risen case, the attorney general told news organizations that he would never put a reporter in jail for doing his job. That seemed to me to be a rather blatant “supplemental brief” in opposition to certiorari.

Mauro: It has been 13 years since the Supreme Court has ruled on a press freedom case involving a journalist. Why do you think that is, and would you recommend to press clients that they bring such cases to the Supreme Court?

Boutrous: It is a striking statistic, particularly given the number of other First Amendment cases that the current Supreme Court has taken up. The court in recent years has appeared to have what I’ve called a First Amendment “blind spot” when it comes to cases involving freedom of the press. That being said, major media organizations used to be much more willing to spend time and money to fight major First Amendment battles than they have been in the last 13 years, so fewer major cases have made their way to the court.

Moreover, there is a sense among some that the current court is hostile to freedom of the press and that it is too risky to ask the court to weigh in on important issues. I just don’t buy that. Journalists should not be discouraged from continuing to pursue press freedom cases in the Supreme Court where warranted. In fact, given that it has been so long since the court weighed in on a First Amendment case involving a journalist, the time might be right for just such a case (or cases) to be heard. And even if the court declines review, cert petitions can help educate the court and elevate issues on the court’s radar screen so the next time around the Justices will be sensitized to the issues and perhaps more likely to grant review.

Mauro: The Supreme Court has ruled favorably in other First Amendment cases to protect controversial speech, ranging from violent video games to protests at military funerals. Do you think the court would regard press cases similarly or differently?

Boutrous: I don’t think the court would view freedom of the press cases any differently except to the extent they present issues that are special to the journalism context. But that should make the arguments in favor of broad First Amendment protection even stronger.

The First Amendment singles out freedom of the press because the framers understood that a robust, independent press — and an informed public — are crucial elements of a thriving democracy. Fifty years ago, the court decided New York Times v. Sullivan and then a string of other pro-press decisions (Branzburg aside). Then that caused a certain amount of backlash, so you started to see the court go out of its way to say that the press is not entitled to special protection. But now the pendulum has swung too far. The court is protecting everyone but journalists, which makes no sense.

Mauro: What do you see as the biggest legal threat journalists face now, and into the future?

Boutrous: Being deemed to have violated the law for obtaining and disseminating illegally leaked information.

I found it astounding — and frightening — when the Justice Department secured a search warrant by labeling Fox News reporter James Rosen “at the very least … an aider, abettor or co-conspirator” under the Espionage Act when he obtained information from a confidential source in connection with a story, and was thus able to rummage through Rosen’s email without his (or anyone else’s) knowledge.

Neither he nor his news organization had any opportunity to object to the search on First Amendment or any other grounds. That the Justice Department would take the position that a reporter may be guilty of an Espionage Act violation simply for doing his job, and that journalists’ work product and possible communications with confidential sources are vulnerable to secret government searches is deeply troubling and poses a very real threat to press freedom.

While the Justice Department did revamp its voluntary internal guidelines for issuing subpoenas and warrants to members of the news media in the wake of this controversy, only time will tell how they and other prosecutors will deal with similar circumstances going forward. In the aftermath of the Snowden leak, some government officials accused the reporters who received the information of committing crimes, so this is not just some abstract concern, especially as the government grapples with the difficulties of keeping information secret in the digitized world we live in today.

Mauro: Should journalists really be concerned about being prosecuted for violating the Espionage Act for obtaining and publishing potentially classified information from government sources? Is there any legal basis for such a prosecution?

Boutrous: No U.S. court has ever enforced the Espionage Act against a journalist, and with good reason. The First Amendment’s protections for the press are not limited to just publication of newsworthy information, they extend to routine newsgathering techniques (like questioning government sources and urging them to leak) as well. The Supreme Court has repeatedly made clear that the First Amendment prohibits the government from punishing a reporter who lawfully obtains and publishes information of public concern — even if he or she knows that the source of that information may have committed a crime by, for example, leaking it, intercepting it or stealing it.

But as we saw in the Fox News/Rosen case, aggressive prosecutors are willing to push the boundaries of the law to deter leaks of classified and other sensitive information and some are remarkably insensitive to First Amendment values.

The Supreme Court has never squarely addressed the issue, so I would not be shocked if we see federal and state prosecutors threatening criminal charges against reporters in the future, even if they are baseless. We need to be ready to fight.