A U.S. federal appeals court’s ruling last Friday that no privilege prevents a reporter from being forced to disclose the source of leaked classified information underscores the urgent need for Congress to adopt a shield law, the International Press Institute (IPI) said today.

Reversing a lower court’s decision, a divided three-judge panel of the Fourth U.S. Circuit Court of Appeals held that neither the First Amendment nor the common law created a privilege that would allow New York Times reporter James Risen to decline to reveal his source for information on a failed CIA effort to sabotage Iran’s nuclear program.

Chief Judge William B. Traxler, Jr. wrote that a three-pronged test – whether information that the government holds a compelling interest in obtaining is relevant and cannot be obtained by other means – may be controlling in civil cases, but not in criminal cases.

Pointing to the Supreme Court’s 1972 decision in Branzburg v. Hayes requiring a journalist who observed drug-related criminal activity to testify before a grand jury, Traxler said: “so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

IPI Executive Director Alison Bethel McKenzie commented: “The implications of the court’s ruling demonstrate, again, why it is imperative that Congress pass a federal reporter’s shield law. Journalists’ ability to protect the confidentiality of sources is integral to their work uncovering information of public interest. The dissenting judge was correct when he opined that the First Amendment was established in ‘recognition that a government unaccountable to public discourse renders that essential element of democracy – the vote – meaningless.’ ”

Federal prosecutors are seeking Risen’s testimony in the trial of former CIA agent Jeffrey Sterling, who is charged with violating the World War I-era Espionage Act. The government alleges that Sterling provided Risen classified information that appeared in Risen’s 2006 book, “State of War: The Secret History of the C.I.A. and the Bush Administration”.

“This latest development in the Risen case is deeply troubling,” IPI Executive Board Vice Chair John Yearwood, world editor of The Miami Herald and chair of IPI’s North American Committee, said. “Many of us had hoped that the government would drop this case, which originated in the Bush administration. Indeed, there was a feeling after the Attorney General issued new rules governing DOJ’s relationship with journalists that the Obama administration had turned the corner in its dealings with the press. It’s now clear that not much has changed.”

The Obama administration has maintained what many have labelled a “war on whistleblowers”, bringing Espionage Act charges against at least seven Americans accused of leaking classified information. That number is more than the combined total of cases under all other administrations since the Act became law in 1917.

On July 13, U.S. Attorney General Eric Holder announced the establishment of new guidelines with respect to investigations involving journalists or their sources in the wake of public outcry following the revelation that the Justice Department secretly collected telephone records of AP reporters and the emails of a Fox News reporter. The rules would strengthen protections for journalists and set a higher level of oversight for investigations involving journalists’ materials.

However, those guidelines can be changed at any moment, leading a bipartisan group of senators last week to introduce an amendment to a proposed federal shield bill that would make the changes permanent. The bill, the Free Flow of Information Act of 2013, is currently before the Senate Judiciary Committee.

Despite the lack of a federal shield law, 49 states and the District of Columbia recognize a qualified privilege for journalists in various proceedings either by statute or caselaw.

In related news, a different federal appellate court last week rejected on procedural grounds a challenge to a law that allows the indefinite detention of those who “substantially supported” al Qaeda, the Taliban or associated forces. Journalist Christopher Hedges and others filed suit to block Sec. 1021 of the National Defense Authorization Act of 2012, which they said could be used to target activists or reporters who interviewed members of those groups.

U.S. District Judge Katherine Forrest of the Southern District of New York agreed last year and issued an injunction barring the provision’s enforcement. However, a three-judge panel on the Second U.S. Circuit Court of Appeals ruled on Wednesday that none of the plaintiffs had standing to maintain the challenge.

U.S. District Judge Lewis A. Kaplan of the Southern District of New York, sitting on the appeals court by designation, wrote that the section had no impact on American citizens because it did not expand the government’s ability to detain them. Conversely, he said, non-U.S. citizen plaintiffs had no standing to sue because they failed to show a basis that the section would likely be enforced against them.