United States v. Jeffrey Sterling ( 2013 )

PUBLISHED
FILED: October 15, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________________
No. 11-5028
(1:10-cr-00485-LMB-1)
___________________
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
JEFFREY ALEXANDER STERLING
Defendant - Appellee
JAMES RISEN
Intervenor - Appellee
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THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION; ABC, INCORPORATED; ADVANCE PUBLICATIONS,
INCORPORATED; ALM MEDIA, INCORPORATED; THE ASSOCIATED PRESS;
BLOOMBERG, L.P.; CABLE NEWS NETWORK, INCORPORATED; CBS
CORPORATION; COX MEDIA GROUP, INC.; DAILY NEWS, L.P.; DOW JONES
AND COMPANY, INCORPORATED; THE E. W. SCRIPPS COMPANY; FIRST
AMENDMENT COALITION; FOX NEWS NETWORK, L.L.C.; GANNETT COMPANY,
INCORPORATED; THE HEARST CORPORATION; THE MCCLATCHY COMPANY;
NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL PUBLIC RADIO,
INCORPORATED; NBCUNIVERSAL MEDIA, LLC; THE NEW YORK TIMES
COMPANY; NEWSPAPER ASSOCIATION OF AMERICA; THE NEWSWEEK DAILY
BEAST COMPANY LLC; RADIO TELEVISION DIGITAL NEWS ASSOCIATION;
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; REUTERS AMERICA
LLC; TIME INC.; TRIBUNE COMPANY; THE WASHINGTON POST; WNET
Amici Supporting Intervenor
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O R D E R
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Petitions for rehearing en banc filed by appellee Sterling and
appellee Risen were circulated to the full court.
No judge requested a poll on Mr. Sterling's petition for
rehearing en banc.
On a poll requested and conducted on Mr. Risen's petition for
rehearing en banc, Judge Gregory voted in favor of the petition.
Chief Judge Traxler, and Judges Niemeyer, Motz, King, Shedd,
Duncan, Agee, Davis, Keenan, Wynn, Diaz, Floyd, and Thacker voted
against the petition. Judge Wilkinson took no part in the
consideration or decision of this case.
The court denies the petitions for rehearing en banc filed by
Mr. Sterling and Mr. Risen. Judge King and Judge Keenan filed
statements regarding their participation in the case. Judge
Gregory filed an opinion dissenting from the denial of rehearing en
banc.
For the Court
/s/ Patricia S. Connor, Clerk
KING, Circuit Judge:
I write to briefly explain my decision to participate in the
disposition of this petition for rehearing en banc. As my
financial disclosure reports reflect, I own stock in Time Warner
Inc., the parent company of certain corporate amici supporting
intervenor Risen, a prospective prosecution witness. Nevertheless,
I have determined that my recusal is not required, in that the
outcome of these proceedings cannot substantially affect my
financial interest in Time Warner, and I otherwise discern no
reasonable basis to question my impartiality. See Code of Conduct
for U.S. Judges Canon 3(C)(1)(c) (“A judge shall disqualify himself
or herself in a proceeding in which the judge’s impartiality might
reasonably be questioned, including but not limited to instances in
which . . . the judge . . . has a financial interest in the subject
matter in controversy or in a party to the proceeding, or any other
interest that could be affected substantially by the outcome of the
proceeding[.]”); see also Comm. on Codes of Conduct Advisory Op.
No. 63 (June 2009) (“[I]f an interest in an amicus would not be
substantially affected by the outcome, and if the judge’s
impartiality might not otherwise reasonably be questioned, stock
ownership in an amicus is not per se a disqualification.”).
Indeed, I have concluded that my recusal in these
circumstances is not only unnecessary, but inadvisable. Put
simply, it could adversely impact our judicial system by inspiring
a form of “judge shopping” accomplished by corporate amici being
enlisted on the basis of the stock ownership interests of judges.
There being no question that they can perform impartially, judges
should not be so readily relieved of their solemn obligation to
faithfully discharge their duties.
BARBARA MILANO KEENAN, Circuit Judge:
I am participating in the Court’s consideration of the
petition for rehearing en banc in this matter, despite my ownership
of stock in Time Warner, Inc., which owns several companies that
are amici in this case. For the reasons well stated by my good
colleague Judge King, I have concluded that my recusal in this
proceeding is neither required nor advisable.
GREGORY, Circuit Judge, dissenting from the denial of en banc
rehearing:
Without debate, without criticism, no Administration and
no country can succeed — and no republic can survive.
. . . And that is why our press was protected by the
First Amendment — . . . to inform, to arouse, to reflect,
to state our dangers and our opportunities, to indicate
our crises and our choices, to lead, mold, educate and
sometimes even anger public opinion. . . . [G]overnment
at all levels[] must meet its obligation to provide you
with the fullest possible information outside the
narrowest limits of national security . . . . And so it
is to the printing press — to the recorder of man’s
deeds, the keeper of his conscience, the courier of his
news — that we look for strength and assistance,
confident that with your help man will be what he was
born to be: free and independent.
President John F. Kennedy, The President and the Press, Address
before the American Newspaper Publishers Association (April 27,
1961).
We have been called upon in this appeal to decide whether
there exists in the criminal context a First Amendment privilege
for reporters to decline to identify their confidential sources.
Rule 35 provides that we may hear cases en banc in two situations:
when “en banc consideration is necessary to secure or maintain
uniformity of the [C]ourt’s decisions,” or when “the proceeding
involves an issue of exceptional importance.” Fed. R. App. P.
35(a). There can be no doubt that this issue is one of exceptional
importance, a fundamental First Amendment question that has not
been directly addressed by the Supreme Court or our Sister
Circuits.
As noted in my opinion dissenting from the panel’s decision on
this issue, forty-nine of the fifty United States, as well as the
District of Columbia, have recognized some form of reporter’s
privilege, whether by statute or in case law. See United States v.
Sterling, 724 F.3d 482, 532-33 (4th Cir. 2013) (Gregory, J.,
dissenting as to Issue I). There is not, as yet, a federal statute
recognizing a reporter’s privilege, but we have recognized such a
privilege in the civil context. See, e.g., LaRouche v. Nat’l
Broad. Co., 780 F.2d 1134 (4th Cir. 1986).
In the criminal context, the case law is sparse. However,
given the speed at which information travels in this Information
Age, the global reach of news sources, and the widely publicized
increase in federal criminal prosecutions under the Espionage Act,
it is impossible to imagine that the issue presented by this case
will not come up repeatedly in the future, in every circuit in the
country. Courts, prosecutors, and reporters will look to our
decision for guidance. Some reporters, including the one in this
case, may be imprisoned for failing to reveal their sources, even
though the reporters seek only to shed light on the workings of our
government in the name of its citizens. That being the case, I
voted for the entire Court to give this issue full consideration.
My good colleagues in the majority concluded that the Supreme
Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), should
be read to preclude a reporter’s privilege absent a showing of bad
faith or harassment on the part of the prosecution. Although I
have the greatest respect for their analysis, I must disagree with
their conclusion. As stated in my dissent, I believe that Justice
Powell’s concurring opinion in Branzburg limits the scope of that
decision, and permits courts to employ, on a case-by-case basis, a
balancing test to determine whether the information sought from the
reporter is relevant, whether it may be obtained by other means,
and whether there is a compelling interest in the information.
Such an approach has been used by this court in the civil context
in LaRouche and in United States v. Steelhammer, 539 F.2d 373 (4th
Cir. 1976), (Winter, J., dissenting), adopted by the court en banc,
561 F.2d 539 (4th Cir. 1977). It would be fitting to apply it in
the criminal context as well.
By offering reporters protection only when the government acts
in bad faith, the majority’s rule gives future reporters little
more than a broken shield to protect those confidential sources
critical to reporting. For when will the government not have a
legitimate interest in the prosecution of its laws? And in
instances where the prosecution itself is pursued in bad faith for
the purpose of harassing a member of the press, it asks far too
much of the reporter, as a mere witness in a case brought against
another individual, to prove as much. This is especially so given
that the majority rejects application of a balancing test wherein
the reporter may attempt to show that his testimony is not
necessary to securing a conviction. In practice, then, such
protection is no protection at all.
An independent press is as indispensable to liberty as is an
independent judiciary. For public opinion to serve as a meaningful
check on governmental power, the press must be free to report to
the people the government’s use (or misuse) of that power. Denying
reporters a privilege in the criminal context would be gravely
detrimental to our great nation, for “[f]reedom of the press . . .
is not an end in itself but a means to the end of a free society.”
Pennekamp v. Florida, 328 U.S. 331, 354-55 (1946) (Frankfurter,
J., concurring).
In light of the exceptional importance of this issue, I must
dissent.