This past summer, a panel held, in a 2-1 vote, that the journalist had no First Amendment privilege enabling him to refuse to testify in the leak prosecution against Sterling. The panel decision overturned a 2011 decision by District Court Judge Leonie Brinkema; the latter had ruled adversely to the government, among other things by quashing a trial subpoena compelling Risen to testify.
Only Circuit Judge Roger Gregory voted to rehear the case en banc, and he filed a dissenting opinion from its refusal to do so. No surprise there: Gregory also had dissented from the panel's decision, so far as concerned Risen's First Amendment claim.
In his en banc dissent, Judge Gregory quotes the April 27, 1961 speech given by then-President John F. Kennedy to the American Newspapers Publishing Association, about the necessity of a free press:
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.
For the dissenting judge, the journalist privilege presented an issue of "exceptional importance" warranting rehearing under established court standards. He also warned of the bad consequences, which the panel's decision would likely bring about:
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).