'New York Times' Reporter Subpoenaed

MICHELE NORRIS, Host:

And as NPR's Carrie Johnson reports, that sets up a big test of the First Amendment.

CARRIE JOHNSON: Ed McMahon is a lawyer for Sterling. He says the whole episode is shrouded in secrecy.

ED MCMAHON: Well, it's the government's right to publish literally whatever they wanted a criminal case, but it doesn't free me to make any comment about it whatsoever.

JOHNSON: Until the government's court filing Monday night, no one had acknowledged that Risen was Author A, mentioned cryptically in the Sterling indictment.

MCMAHON: I find this filing quite interesting in that regard. But I can't say anything about it.

JOHNSON: Justice Department prosecutors say this time they really mean it. Laura Sweeney is a spokeswoman for the government.

LAURA SWEENEY: We make every reasonable effort to attempt to obtain information from alternative sources, before even considering a subpoena to a member of the press. And we only seek information essential to directly establishing innocence or guilt.

JOHNSON: To First Amendment lawyer Martin Garbus, the fact the government needs Risen so much exposes some problems with the Justice Department's case.

MARTIN GARBUS: There's a reason for the government to play that card showing how weak their case was, at any time prior to the trial, the government may hope that there'd be some kind of disposition, some kind of plea.

JOHNSON: Here's Miller talking to reporters in September 2005 on her way out of custody.

JUDITH MILLER: I served 85 days in jail because of my belief in the importance of upholding the confidential relationship journalists have with their sources.

JOHNSON: Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.