                             PUBLISHED
                                            FILED:   October 15, 2013

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT

                       ___________________

                           No. 11-5028
                      (1:10-cr-00485-LMB-1)
                       ___________________

UNITED STATES OF AMERICA

                     Plaintiff - Appellant

v.

JEFFREY ALEXANDER STERLING

                     Defendant - Appellee

JAMES RISEN

                     Intervenor - Appellee

------------------------------

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

                       ___________________

                            O R D E R
                       ___________________

     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.
