Press subpoenas are a bigger problem than youd think

The Obama administration continues to strong-arm journalists into revealing sources

Bruce Brown is is executive director of the Reporters Committee for Freedom of the Press, and has argued numerous First Amendment cases before US courts.

By now, everyone knows the feds have been handing out record numbers of subpoenas to journalists hoping to scare them into giving up their sources. The troubles of New York Times reporter James Risen, the most well-known of these besieged journalists, remain unresolved almost seven years after the Bush administration first knocked on his door with a subpoena to appear before a grand jury.

There is another recent subpoena fight that has flown under the radar but ought to be brought into fuller view. It should be a wake-up call for anyone who cares about press freedom to heed a complaint that judges have been making since the Supreme Court looked at this issue 40 years agothat journalists cant prove that their sources dry up when the reporters they leak to are stalked by process servers.

The latest subpoena fight began in the summer of 2009 when Mike Levine, then a reporter for Fox News, wrote a story about the federal government probing links between Somali Muslims in Minneapolis and Al Qaeda. Citing law enforcement sources, Levine reported about grand jury indictments in the investigation while they were still sealed. The government successfully obtained pleas from several defendants and then went on to publicly tout the victory, but the leak set off alarms.

By early in 2011, the Justice Department had subpoenaed Levine, saying that it needed to know the identity of the law enforcement sources cited in his article. Levine moved to quash the subpoena, saying he promised his sources confidentiality. And the government sought to enforce it, saying that federal laws may have been broken.

All sound familiar? Levines case is but a piece in the onslaught of press subpoenas that have defined the Obama administration. But nothing was known publicly about this specific case until last May, when Levine, now at ABC News, wrote about it on the networks website. Then last month, US District Court Judge Royce Lamberth, who sits in DC, unsealed the docket.

Both from Levines account and court records, we learned that in July 2011, Lamberth denied the motion to quash. We also learned that the Justice Department in the end never forced Levine to testify. In April 2012, almost three years after Levines Somali story ran, prosecutors said they were withdrawing the subpoena. They offered no explanation as to why.

Levines case is more than just another example of the administration trying to force journalists to identify their sources. It stands out in part because of a statement by Lamberth in rejecting Levines arguments. The judge looked to a passage from the 1972 Supreme Court ruling in Branzburg v. Hayes, the one and so far only time that the press and the government have clashed over the issue at the nations highest court. In the passage, Justice Byron White wrote for a narrow majority in allowing prosecutors in a drug probe to obtain evidence from reporters trying to claim they were protected from testifying by the First Amendment. White said there simply wasnt enough empirical evidence to show that subpoenaing journalists would have a chilling effect on their sources.

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Press subpoenas are a bigger problem than youd think