## Facts

- Jeffrey Alexander Sterling, a former CIA case officer with top secret clearance, signed secrecy and nondisclosure agreements during his CIA employment.
- Sterling worked on a classified CIA program intended to impede Iran’s nuclear-weapons efforts and handled a covert Iranian asset.
- After workplace disputes and unsuccessful civil litigation, Sterling left the CIA.
- Sterling had telephone and email contacts with journalist James Risen.
- Risen later published *State of War*, which included detailed classified information about the CIA’s Iran operation.
- A grand jury indicted Sterling on multiple counts under the Espionage Act for unauthorized retention and disclosure of national-defense information, 18 U.S.C. § 793(d)–(e), and related charges.
- To prove Sterling was the source of the classified disclosures, the government subpoenaed Risen to testify at Sterling’s criminal trial about confidential sources for the book.
- Risen moved to quash, asserting a qualified reporter’s privilege under the First Amendment and federal common law; the district court largely quashed the subpoena, permitting only limited non-source-identifying “contextual” testimony.
- The United States appealed the quash order under 18 U.S.C. § 3731.

## Issues

1. Whether the First Amendment provides a reporter’s privilege allowing a journalist to refuse to testify at a federal criminal trial about confidential sources.
2. Whether a federal common-law reporter’s privilege exists under Federal Rule of Evidence 501 that would protect a journalist from disclosing confidential sources in a criminal trial.

## Decision

- The Fourth Circuit reversed the district court’s order largely quashing the subpoena and remanded.
- The court held that *Branzburg v. Hayes* controls and does not recognize a First Amendment privilege that exempts reporters from giving relevant testimony in criminal proceedings about confidential sources.
- The court declined to recognize a federal common-law reporter’s privilege under Rule 501 for this context.
- The court concluded Risen could be compelled to testify, subject to ordinary evidentiary limits.

## Legal Principles

- Under *Branzburg v. Hayes*, reporters generally have no First Amendment-based exemption from providing relevant testimony in criminal proceedings, including testimony that would reveal confidential sources.
- Testimonial privileges are disfavored because they impede fact-finding; creating new privileges requires strong justification.
- Federal Rule of Evidence 501 permits development of privileges based on “reason and experience,” but courts may decline to create a new privilege where Supreme Court precedent and institutional role concerns counsel against it.
- In leak prosecutions involving classified national-defense information, the government’s interest in enforcing criminal law and obtaining key, non-duplicative evidence may justify compelling a reporter’s testimony.

## Conclusion

The Fourth Circuit held that a journalist subpoenaed in a federal criminal trial may be compelled to testify about confidential sources because neither the First Amendment nor a judicially created Rule 501 privilege shields such source-identifying testimony, and it reversed the district court’s order quashing most of the subpoena.


United States v. Sterling, 724 F.3d 482 (4th Cir. 2013)