PUBLISHED

FILED: October 15, 2013

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 11-5028

(1:10-cr-00485-LMB-1)

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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.