UNITED STATES COURT OF APPEALSFOR THE FOURTEENTH CIRCUIT

______________________________)

Frederick UNDERSON, Sheriff, )Haffney County, Albers, )

Plaintiff-Appellant, ))

Chloe BURNS, )Intervenor-Appellant, )

)v. ) No. ALB-17-01

) Decided: August 3, 2016UNITED STATES of America, )

Defendant-Appellee. )______________________________)

OPINION

Before STAMPER, SKORSKY, and WOMACK, Circuit Judges.WOMACK, Circuit Judge.

This appeal results from the consolidation of two appeals

from the United States District Court for the District of Albers.

Appellant Frederick Underson, Sheriff of Haffney County, Albers,

brought suit seeking to enjoin the enforcement of the Statute

Opposing Firearms for Terrorists (“SOFT”)1. Underson asserted

that SOFT violates the Tenth Amendment. Appellee United States,

defendant below, sought to compel Appellant Chloe Burns, a staff

reporter at The Haffney County Times (“The Times”), to disclose

information that would allegedly affect Underson’s standing to

bring suit. The district court granted Appellee’s motion to

compel, and ordered Burns in contempt after she refused to

comply. Burns appealed that decision to this Court. While that

1 The full text of SOFT appears in Appendix B.

appeal was pending, the district court granted Appellee’s motion

for summary judgment, dismissing Underson’s claim and upholding

SOFT as a valid exercise of the federal government’s Article II

Treaty Power. Underson appealed that decision to this Court.

We vacate the district court’s contempt order and reverse

the district court’s grant of Appellee’s motion to compel. We

also reverse the district court’s grant of summary judgment in

Appellee’s favor, and remand for further proceedings.

Relevant Factual Background

In 2014, the President signed and the Senate ratified the

International Terrorism Prevention Treaty (“the Treaty”).2 The

Treaty’s purpose is to limit the international trade of weapons

that often find their way into the hands of terrorists.

International Terrorism Prevention Treaty art. 1, Dec. 2, 2014,

125 Stat. 1234, 2525 U.N.T.S. 444. The Treaty intends to “prevent

and eradicate the illicit trade in conventional arms and prevent

their diversion to terrorist organizations.” Id. The Treaty is

not self-executing. Thus, it would not affect domestic law absent

a statute passed by Congress and signed by the President. Id.

art. 3, art. 4.

The President was a strong proponent of the Treaty, which

was the result of years of extensive bargaining among many of the

world’s countries. The Treaty contains broad language intended to

2 The full text of the Treaty appears in Appendix A.

2

make it as effective as possible for as many different countries

as possible. As of today, sixty-two countries have signed and

either acceded to or ratified the Treaty. Moreover, the Treaty

received significant public support, and in September 2015,

Congress passed SOFT to implement the treaty. 18 U.S.C. §§ 2001a-

2001e (Supp. 2016). The President signed SOFT into law, publicly

stating that “this law will set an example for the rest of the

world.”

SOFT imposes certain obligations aimed at preventing the

illegal sale of firearms on certain state law enforcement

officials. Id. § 2001d. Under SOFT, a firearms dealer who

proposes to transfer a gun to a transferee “who cannot provide

proof of in-state residence” must first “receive from the

transferee a statement, containing the name, address, and date of

birth of the proposed transferee,” along with a document

confirming the transferee’s identity. Id. § 2001c(a)(1)(A)-(B).

The dealer must give notice and a copy of the transferee’s

statement to the “chief law enforcement officer” (“CLEO”) of the

transferee’s residence. Id. § 2001c(a)(1)(C)-(D). The dealer must

then wait five business days before completing the sale, unless

the CLEO notifies the dealer during those five days that the CLEO

has no reason to believe the transfer would be illegal. Id. §

2001c(a)(2)-(3).

3

When a CLEO receives the required notice of a proposed

transfer from a firearms dealer, the CLEO “may make a reasonable

effort to” determine whether the proposed transferee is legally

permitted to purchase or possess a firearm. Id. § 2001d(a). SOFT

does not obligate the CLEO to undertake such an investigation,

but if the CLEO chooses to do so, and determines that the

transferee’s receipt or possession of a firearm is illegal, the

CLEO must notify the firearms dealer to that effect and provide

the transferee with a written explanation upon request. Id. §

2001d(a)(1)-(2). If a CLEO does not discover any basis for

objecting to a transfer, he may, but need not, notify the dealer.

Id. § 2001d(b). If a CLEO does not discover any basis for

objecting to a transfer, he must destroy any records in his

possession relating to the transfer. Id. § 2001d(c). Any person

who “knowingly violates SOFT shall be fined under this title,

imprisoned for not more than 1 year, or both.” Id. § 2001e.

While SOFT does not require CLEOs to take specific actions,

SOFT does require state law enforcement officials to receive

certain information from residents seeking to obtain a firearm,

and imposes certain obligations on state law enforcement

officials who voluntarily take action on a particular gun

transfer transaction. In that way, SOFT is similar to certain

provisions of the Brady Handgun Violence Prevention Act Amendment

of 1993 (“BHVPA”). 18 U.S.C. § 922(s)(1)(A). SOFT’s purpose is

4

different, however, as Congress enacted SOFT to give effect to

the Treaty. 18 U.S.C. § 2001a.

On January 13, 2016, Underson filed suit to enjoin

enforcement of SOFT. Shortly after Underson filed suit, Burns

obtained information through an employee in the Haffney County

Clerk’s office that there had been fraud in the election of

Underson. The Right to Guns Association (“RGA”) had supported

Underson because he strongly opposed SOFT. The source informed

Burns that the RGA had allegedly paid off three individuals in

the County Clerk’s office to tamper with the results of the

county sheriff election to assure that Underson would win. While

the source did not identify which individuals were involved in

the fraud, the source indicated that Underson had no involvement

or knowledge of the fraud. Burns’s editor at The Times gave her

permission to promise the source that their identity would remain

confidential in exchange for the source agreeing to bring Burns

any other information they learned about the election. On

February 21, 2016, The Times published Burns’s article exposing

the alleged fraud.

Appellee subsequently deposed Underson, who confirmed that

he had no information about the alleged fraud. Appellee then

subpoenaed Burns to compel her to disclose her confidential

source in a non-party deposition. Appellee asserted that if the

information Burns obtained about the fraud was true, Appellant

5

Underson’s election was invalid and he would not be a properly-

elected state official with standing to bring suit.3 Appellee did

not subpoena any of the seventeen employees or officials who work

in the County Clerk’s office or any of the hundreds of members of

the local RGA chapter. Appellee asserts that deposing RGA members

or the employees at the Clerk’s office hoping to discover

information about the fraud would be too costly and too

difficult, especially given that Appellee has no idea which

individuals might have such information.

Burns refused to comply with the subpoena, asserting a First

Amendment reporter’s privilege to withhold the identity of her

source.4 On Appellee’s motion, the district court ordered Burns

to comply with the subpoena. When Burns refused to comply, the

district court issued an order holding Burns in civil contempt of

court, and ordering her to pay a fine of $500 each day she

refused to comply, payment to be stayed pending appeal.

Burns appealed the contempt order to this Court. While that

appeal was pending, Appellee moved for summary judgment against 3 Neither this Court nor the district court have considered whether the information sought would affect Appellant Underson’s standing to sue Appellee, and this Court will not speculate on the standing issue at this time.4 Albers has not enacted a shield law protecting reporters from disclosing a confidential source’s identity. Moreover, Burns does not assert a federal common law reporter’s privilege under Federal Rule of Evidence 501. Thus, this Court will not consider whether to recognize such a privilege. See, e.g., United States v. Sterling, 724 F.3d 482, 499-500, 504 (4th Cir. 2013) (declining to recognize a federal common law reporter’s privilege).

6

Underson. The district court granted summary judgment, dismissing

Underson’s claim and upholding SOFT as a valid exercise of the

government’s Treaty Power. Underson appealed to this Court. This

Court consolidated these appeals for hearing and disposition.

Discussion

Jurisdiction

This Court has jurisdiction over both appeals under 28

U.S.C. § 1291. Underson does not challenge the President’s or the

Senate’s action in entering into or terminating treaties, but

rather asks this Court to consider the constitutionality of SOFT.

Normally, neither a discovery order nor a civil contempt

order are final orders reviewable under § 1291. See In re Madden,

151 F.3d 125, 127 (3d Cir. 1998); Pro-Choice Network of W. N.Y.

v. Walker, 994 F.2d 989, 994 (2d Cir. 1993). In this case,

however, as Burns was not a party to the original suit, she would

have no means, “other than an immediate appeal before us, to

obtain appellate review of the district court’s decision.” In re

Madden, 151 F.3d at 127. Moreover, after Burns filed her appeal,

the district court entered a final judgement on the merits of the

underlying case. Because the district court’s grant of summary

judgment ended litigation on the merits, and because this Court

is the only forum in which Burns could seek review, we conclude

that the district court’s discovery order and contempt order are

7

final decisions over which we have jurisdiction under to 28

U.S.C. § 1291.

Standard of Review

Whether SOFT is a constitutional exercise of Congressional

power is a question of law, which this Court will review de novo.

Pierce v. Underwood, 487 U.S. 552, 558 (1988).

A district court’s discovery order is typically reviewed for

abuse of discretion. Lee v. Dep’t of Justice, 413 F.3d 53, 59

(D.C. Cir. 2005). However, “a district court abuses its

discretion when it commits an error of law.” United States v.

Sterling, 724 F.3d 482, 512 (4th Cir. 2013) (quoting United

States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007)). Whether a

First Amendment reporter’s privilege exists is a question of law,

which this Court will review de novo. See Pierce, 487 U.S. at

558; In re Madden, 151 F.3d at 128.

Constitutionality of SOFT

In considering this issue, this Court must consider the

scope of the federal government’s Treaty Power and its impact on

the balance between the federal government and the states. The

Constitution grants broad powers to the national government, but

those powers are not unlimited. The Tenth Amendment expressly

reserves “powers not delegated to the United States by the

Constitution, nor prohibited by it to the states.” U.S. Const.

8

amend. X. One of the powers explicitly granted to the federal

government is the power to make treaties on behalf of the United

States. See U.S. Const. art. II, § 2. The executive and

legislative branches share this power: the Constitution gives the

President the authority to negotiate and form treaties, but two-

thirds of the Senate must ratify the treaty. See U.S. Const. art.

II, § 2. Ratified treaties are part of the “supreme law of the

land,” and courts can enforce self-executing treaties. U.S.

Const. art. VI; see also Foster v. Neilson, 27 U.S. (2 Pet.) 253,

254 (1829).

Although the Constitution specifies the process for making

treaties, the Constitution does not address the extent to which

such treaties can alter domestic law. See U.S. Const. art. II, §

2. The seminal decision concerning the scope of the treaty power

is Missouri v. Holland, 252 U.S. 416, 433-34 (1920). In Holland,

Missouri sued to enjoin enforcement of the Migratory Bird Treaty

Act of 1918, a federal statute that implemented a migratory bird

protection treaty. Id. at 430-31. Two federal district courts had

held that an earlier version of the statute, enacted prior to the

conclusion of the treaty, was unconstitutional because it

infringed on the reserved powers of the states to regulate

natural resources within their borders. Id. at 433. The Holland

Court concluded that regardless of whether those district court

decisions were correct, Congress has broader authority to enact

9

legislation to implement a treaty than to enact legislation

pursuant to its ordinary legislative powers. Id. at 433-34. The

Court stated that although the Treaty Power has limits, those

limits “must be ascertained in a different way” from the limits

that apply to other types of legislation. Id. at 433.

Examining the Tenth Amendment’s impact on the treaty, the

Court observed that “[n]o doubt the great body of private

relations usually fall within the control of the State,” but

asserted that “a treaty may override its power.” Id. at 434.

Congress’s power under the Treaty Clause is not limitless,

however, as “no agreement with a foreign nation can confer power

on the Congress, or on any other branch of Government, which is

free from the restraints of the Constitution.” Reid v. Covert,

354 U.S. 1, 15 (1957) (plurality opinion). Indeed, the Supreme

Court has enforced other Tenth Amendment limits on the federal

government’s authority in recent years. See, e.g., United States

v. Morrison, 529 U.S. 598, 617-18 (2000); United States v. Lopez,

514 U.S. 549, 584 (1995).

Three years ago, the Supreme Court decided Bond v. United

States, which concerned a criminal prosecution under a federal

statute that implements the Chemical Weapons Convention. 134 S.

Ct. 2077, 2081 (2014). Seeking revenge on the woman Bond’s

husband impregnated, Petitioner Carol Anne Bond applied toxic

chemicals to the other woman’s house, car, and mailbox. Id. at

10

2085. Federal authorities charged Bond with “two counts of

possessing and using a chemical weapon,” in violation 18 U.S.C. §

229(a). Bond, 134 S. Ct. at 2085. Bond challenged the chemical

weapons charges, arguing that § 229 “exceeded Congress’s

enumerated powers and invaded powers reserved to the States by

the Tenth Amendment.” Id. 2085-86.

In a unanimous opinion, the Supreme Court emphasized that

“in our federal system, the National Government possesses only

limited powers; the States and the people retain the remainder,”

including a general police power. Id. at 2086. The Court

acknowledged that both parties had raised arguments over whether

§ 229 “is a necessary and proper means of executing the National

Government’s power to make treaties.” Id. at 2087. The Court

declined to answer that question, however, citing the doctrine of

constitutional avoidance. Id. Instead, the Court stated that it

would presume that Congress did not intend to intrude on

traditional areas of state authority, such as the prosecution of

local crimes, absent a “clear indication” that Congress intended

that result. Id. at 2090. Finding no such “clear indication” in §

229’s language, the Court interpreted § 229 not to reach Bond’s

conduct. Id. at 2093-94.

Justices Scalia, Thomas, and Alito each wrote concurring

opinions. Id. at 2094 (Scalia, J., concurring); Id. at 2102

(Thomas, J., concurring); Id. at 2111 (Alito, J., concurring).

11

All three would have held that § 229 covered Bond’s conduct. Id.

at 2094 (Scalia, J., concurring). They agreed with the decision

to reverse, however, because each concluded that the statute was

unconstitutional. First, Justice Scalia, joined by Justice

Thomas, argued that the statute exceeded Congress’s authority

under the Necessary and Proper and Treaty Clauses; he construed

the Treaty Clause to give Congress the power to enact laws only

to facilitate the making of treaties, not their implementation.

Id. at 2098-99 (Scalia, J., concurring) (citing U.S. Const. art.

I, § 8, cl. 18; U.S. Const. art. II, § 2, cl. 2).

Second, Justice Thomas, joined by Justices Scalia and Alito,

argued that “the Treaty Power is limited to matters of

international intercourse.” Id. at 2109, 2110 (Thomas, J.,

concurring). “Nothing in our cases . . . suggests that the Treaty

Power conceals a police power over domestic affairs.” Id. at

2109. Finally, Justice Alito concurred separately, stating that

he would have found that chemical weapons control “is a matter of

great international concern, and therefore the heart of the

Convention clearly represents a valid exercise of the treaty

power.” Id. at 2111 (Alito, J., concurring). He would hold,

however, that “insofar as the Convention may be read to obligate

the United States to enact domestic legislation criminalizing

conduct of the sort at issue in this case, which typically is the

12

sort of conduct regulated by the States, the Convention exceeds

the scope of the treaty power.” Id.

Especially relevant to this case is the Supreme Court’s

decision in Printz v. United States, in which the Court struck

down a provision of the Brady Handgun Violence Prevention Act

Amendment of 1993 (“BHVPA”) that required a chief law enforcement

official (“CLEO”) to perform the same steps as those required

under SOFT. 521 U.S. 898, 935 (1997) (citing 18 U.S.C. § 922(s)

(1)(A)). Printz held that the BHVPA provision requiring CLEOs to

receive information from potential gun purchasers was

unconstitutional, because it violated the “anti-commandeering”

principle. Id. at 934. This principle recognizes “that even where

Congress has the authority under the Constitution to pass laws

requiring or prohibiting certain acts, it lacks the power

directly to compel the States to require or prohibit those acts.”

New York v. United States, 505 U.S. 144, 166 (1992). Writing for

the majority in Printz, Justice Scalia held that “Congress cannot

circumvent that prohibition by conscripting the State’s officers

directly.” 521 U.S. at 935.

Relying on Holland, the district court here held that SOFT

was a constitutional exercise of Congress’s power under the

Treaty Clause. Because SOFT was necessary to give effect to the

Treaty, the court reasoned that the federal government’s reach

into the state’s sovereign police power was constitutionally

13

permissible. The district court found that the Treaty Power

allows Congress to legislate in excess of its Article I powers,

so long as the legislation is of “international concern.” Duncan

B. Hollis, Executive Federalism: Forging New Federalist

Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327, 1340

(2006); see also Holmes v. Jenson, 39 U.S. (14 Pet.) 540, 569

(1840); Restatement (Second) of Foreign Relations Law § 117 cmt.

b (1965).

Although we are bound to follow Supreme Court precedent, we

find that Holland does not control the issue before us. Holland

considered whether the treaty itself was a valid exercise of the

federal Treaty Power. 252 U.S. at 433. Here, in contrast, the

constitutionality of the statute is at issue. Unlike in Holland,

the Treaty imposes no specific obligations, but only articulates

general goals; Congress enacted SOFT to achieve those goals, but

nothing in the Treaty requires that Congress impose the

obligations included in SOFT.

Even if Holland were controlling, we would interpret that

decision differently than the district court did. We would find

that the Treaty Power, although broad, does not authorize

Congress to enact legislation that expands federal power beyond

the constitutional limits established in Printz. The concurring

justices in Bond all opined that congressional power remains

limited to what is necessary and proper under Article I, § 8,

14

even when the Treaty Power is used to implement ratified

international treaties. See 134 S. Ct. at 2098-99 (Scalia, J.,

concurring); Id. at 2109, 2110 (Thomas, J., concurring); Id. at

2111 (Alito, J., concurring). “Nothing in our cases . . .

suggests that the Treaty Power conceals a police power over

domestic affairs.” Id. at 2109 (Thomas, J., concurring).

Therefore, like Justice Thomas, we find that “the holding in

Holland is consistent with the understanding that treaties are

limited to matters of international intercourse.” Bond, 134 S.

Ct. at 2109 (Thomas, J., concurring). This interpretation also

best comports with a straightforward reading of the Constitution,

which gives the federal government broad power “to make”

treaties, not necessarily to implement them. See Nicholas Quinn

Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867,

1880-92 (2005).

Finally, Appellee argues that as a matter of policy, a broad

and flexible Treaty Power best aligns with the Founders’

recognition of the need for an increasingly international federal

government. See The Federalist No. 42, at 213-14 (James Madison);

see also Oona A. Hathaway, et al., The Treaty Power: It’s

History, Scope, and Limits, 98 Cornell L. Rev. 239, 309 (2013).

Such a broad Treaty Power is simply not necessary, however, as

very few treaties require such expansive exercises of power. See

15

Michael D. Ramsey, Congress’s Limited Power to Enforce Treaties,

90 Notre Dame L. Rev. 1539, 1552 (2015).

For these reasons, we hold that the district court

incorrectly upheld SOFT as a constitutional exercise of

Congress’s power. We therefore REVERSE the district court’s grant

of summary judgment Appellee’s favor, and remand the case to the

district court for further proceedings.

First Amendment Privilege

In response to Appellee’s subpoena to compel her to reveal

the identity of her confidential source, Appellant Burns asserts

a First Amendment reporter’s privilege to withhold the identity

of her source. Appellee asserts that Burns must comply with the

district court’s order to reveal her confidential source unless

she can show that Appellee made its request in bad faith or for

the purposes of harassing the press. See Branzburg v. Hayes, 408

U.S. 665, 707-08 (1972) (5-4 decision).

News reporters often receive information from sources with

the understanding that the reporter will withhold the source’s

name and any information that the source would not like

published. Id. at 693. Although the First Amendment prohibits the

government from abridging the freedoms of speech and of the

press, the First Amendment “does not invalidate any incidental

burdening of the press that may result from the enforcement of

16

civil or criminal statutes of general applicability.” Id. at 682

(citing U.S. Const. amend. I).

Prior to this Court’s decision in Branzburg, courts had

consistently refused to recognize a privilege allowing a reporter

to refuse to disclose confidential information in a court

proceeding. Id. at 685; see also Garland v. Torre, 259 F.2d 545,

547 (2d Cir. 1958). In Branzburg, a five-to-four decision

reviewing three consolidated cases, the Supreme Court held that

requiring reporters to testify before grand juries does not

abridge the First Amendment freedoms of speech and press. Id. at

708-09. Branzburg did state, however, that if a grand jury

investigation were conducted “other than in good faith” or for

the purpose of harassment, First Amendment protections would

apply. Id. at 707-08. Burns does not allege bad faith or

harassment here.

Justice Powell joined the majority opinion, but wrote a two-

paragraph concurrence “to emphasize . . . the limited nature of

the Court’s holding.” Id. at 709 (Powell, J., concurring).

Justice Powell asserted that if a reporter were asked to reveal

“information bearing only a remote and tenuous relationship to

the subject of the investigation, or if he has some other reason

to believe that his testimony implicates [a] confidential source

relationship without a legitimate need of law enforcement,” the

First Amendment would protect that information. Id. at 710.

17

Justice Stewart, joined by Justices Brennan and Marshall,

wrote a dissenting opinion recognizing a qualified reporter’s

privilege. Branzburg, 408 U.S. at 743 (Stewart, J., dissenting).

Justice Douglas wrote a separate dissenting opinion arguing that

the press should have absolute immunity from compelled testimony.

United States v. Caldwell, 408 U.S. 665, 711-12 (1972) (Douglas,

J., dissenting).

Although Branzburg could be read as casting doubt on the

existence of a First Amendment reporter’s privilege, the Supreme

Court has subsequently cited Branzburg for the concept that

reporters are “entitled to some constitutional protection of the

confidentiality of [their] sources.” Pell v. Procunier, 417 U.S.

817, 834 (1974) (citing Branzburg, 408 U.S. at 684-85). In the

1970s and 1980s, many federal and state courts treated Branzburg

as a plurality opinion because of Justice Powell’s concurrence,

and recognized a limited First Amendment reporter’s privilege.

See, e.g., In re Grand Jury 87-3 Subpoena Duces Tecum, 955 F.2d

229, 232-34 (4th Cir. 1992). Branzburg’s splintered opinion

divided the lower courts as to whether, why, and when a reporter

may exercise a privilege to refuse to reveal information. See,

e.g., McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003)

(describing conflicting post-Branzburg cases). This Court has not

previously had the opportunity to address this question.

Some courts have held that unless the government can

18

overcome the privilege, a qualified First Amendment reporter’s

privilege protects against the disclosure of confidential

information even in criminal cases. See, e.g., United States v.

LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); Silkwood

v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977). Other

courts have found that reporters may assert a qualified First

Amendment privilege in civil cases, if not in criminal grand jury

proceedings. See, e.g., Zerilli v. Smith, 656 F.2d 705, 711 (D.C.

Cir. 1981). Among those courts that have recognized a qualified

First Amendment reporter’s privilege, several employ a

“balance[ing] of the interests” test to determine whether the

reporter can exert a First Amendment privilege. See, e.g.,

LaRouche v. Nat’l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986)

(citing Branzburg, 408 U.S. at 710 (Powell, J., concurring)). “To

aid in the balancing of these interests, courts have developed a

three part test: (1) whether the information is relevant, (2)

whether the information can be obtained by alternative means, and

(3) whether there is a compelling interest in the information.”

LaRouche, 780 F.2d at 1139. Other courts apply a similar

balancing test that considers whether “the information sought

goes to the heart of the matter,” and whether “the litigant has

shown that he has exhausted every reasonable alternative source

of information.” Zerilli, 656 F.2d at 713 (internal quotations

and citations omitted).

19

More recently, however, federal courts have expressed doubts

about the breadth of the First Amendment reporter’s privilege,

indicating that confusion remains regarding a reporter’s

privilege. In McKevitt v. Pallasch, after reviewing decisions

recognizing a First Amendment reporter’s privilege, Judge Posner

criticized some cases for essentially ignoring Branzburg and

others for treating the majority opinion as a plurality opinion.

McKevitt, 339 F.3d at 532. In 2005, the Court of Appeals for the

D.C. Circuit, which had previously recognized a qualified

reporter’s privilege in civil cases, seemed ready to step back

from that position. In re Grand Jury Subpoena, Judith Miller (“In

re Miller”), 397 F.3d 964, 969 (D.C. Cir. 2005) (emphasizing in a

criminal matter that “[t]he Supreme Court in no uncertain terms

rejected the existence of such a privilege”), reh’g en banc

denied, 405 F.3d 17 (D.C. Cir. 2005), op. superseded by, 438 F.3d

1141 (D.C. Cir 2006). Despite this limiting language, however,

almost immediately after deciding In re Miller, the same judge

reaffirmed the existence of a First Amendment reporter’s

privilege in a civil context. Lee v. Dep’t of Justice, 413 F.3d

53, 57-58 (D.C. Cir. 2005), reh’g en banc denied, 428 F.3d 299

(D.C. Cir. 2005) (citing Zerilli, 656 F.2d at 712).

Appellee asks this Court to find that the First Amendment

does not protect Burns from being compelled to reveal her

confidential source, and to reinstate the district court’s

20

contempt order. Appellee asserts that reporters have no First

Amendment privilege to withhold information in any court

proceeding, civil or criminal, because Branzburg “in no uncertain

terms rejected the existence of” a First Amendment reporter’s

privilege. In re Miller, 397 F.3d at 970.

We disagree. Certainly, freedom of the press “is not

absolute,” and “must give place under the Constitution to a

paramount public interest in the fair administration of justice.”

Garland, 259 F.2d at 548-49. The First Amendment protects both

the right to publish and the right to gather news, however.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980);

N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). Even in

Branzburg, this Court observed that “newsgathering is not without

its First Amendment protections.” 408 U.S. at 707. If reporters

cannot exert the privilege to protect confidential sources from

disclosure in civil cases, newsgathering will be chilled,

affecting the free flow of information to the public. See

Sterling, 724 F.3d at 493.

Appellee contends that Branzburg emphasized that reporters

have an obligation to respond to subpoenas “as other citizens

do.” 408 U.S. at 682. We agree that reporters are not entitled to

“‘special immunity from the application of general laws,’” and

have “‘no special privilege to invade the rights and liberties of

others.’” Id. at 683 (quoting Associated Press v. NLRB, 301 U.S.

21

103, 132-33 (1937)). We find, however, that Branzburg’s holding

is “limited.” 408 U.S. at 709 (Powell, J., concurring). The

decision is functionally a plurality opinion, and moreover, the

Court focused on compelled testimony in the criminal grand jury

context, not in a civil case. See Zerilli, 656 F.2d at 711. Thus,

Branzburg does not control our decision.

Instead, we adopt the reasoning of our sister circuits that

“in the ordinary case the civil litigant’s interest in disclosure

should yield to the journalist’s privilege.” Zerilli, 656 F.2d at

712. The party seeking compelled disclosure should bear the

burden of proving that the information it seeks “is relevant” and

cannot “be obtained by alternative means,” and that “there is a

compelling interest in the information.” LaRouche, 780 F.2d at

1139; see also Branzburg, 408 U.S. at 743 (Stewart, J.,

dissenting).

Although the information Appellee seeks may be relevant,

Appellee can obtain the information elsewhere. For example,

Appellee could depose County Clerk Office employees. Moreover,

although the government and the public have an interest in the

fair and proper adjudication of this case, Appellee has not met

its burden of proving that this interest outweighs Appellant’s

interest in keeping her source confidential. See Branzburg, 408

U.S. at 683-84.

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For these reasons, we hold that Burns may properly assert a

First Amendment reporter’s privilege to withhold the identity of

her confidential source. Moreover, Appellee has not overcome that

privilege in this case. We further find that although the

information sought is relevant and perhaps compelling, Appellee

had not exhausted every other means of obtaining the information.

We therefore VACATE the district court’s contempt order and

REVERSE the district court’s grant of Appellee’s motion to

compel.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALBERS

___________________________________)

Frederick UNDERSON, ))

v. ) No. ALB-17-01)

UNITED STATES of America. )___________________________________)

ORDER GRANTING MOTION TO STAY

Defendant United States of America has filed a motion

requesting that this case be stayed while Defendant’s petition

for a writ of certiorari is pending before the Supreme Court.

Plaintiff does not oppose the stay. This Court acknowledges that

if the Supreme Court grants Defendant’s petition, the Supreme

Court’s decision could nullify any developments in this case and

require additional proceedings. Therefore, Defendant’s motion for

a stay is GRANTED.

So ordered: October 19, 2016.

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SUPREME COURT OF THE UNITED STATES

___________________________________)

UNITED STATES of America, )Petitioner, )

)v. ) No. ALB-17-01

)Frederick UNDERSON, Sheriff, )Haffney County, Albers, )

Respondent, )

)Chloe BURNS, )

Respondent. )___________________________________)

ORDER GRANTING CERTIORARI

This Court grants United States of America’s Petition for

Writ of Certiorari to the Supreme Court of the United States. The

Court will consider two questions:

1. Whether the Statute Opposing Firearms for Terrorists, enacted in furtherance of the International Terrorism Prevention Treaty, is an unconstitutional exercise of congressional power.

2. Whether the First Amendment protects a reporter from compelled testimony that reveals a confidential source.

__________________________________Leann Garvey, Clerk

January 24, 2017

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APPENDIX A

International Terrorism Prevention TreatyDate of signing: December 2, 2014 125 Stat. 1234, 2525 U.N.T.S. 444

Article 1Object and Purpose

The object of this Treaty is to:

Establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms;

Prevent and eradicate the illicit trade in conventional arms and prevent their diversion to terrorist organizations;

for the purpose of:

Contributing to international and regional peace, security and stability;

Reducing human suffering;

Promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties.

Article 2Definitions

This Treaty shall apply to all conventional arms within the following categories:

A. Battle tanks;B. Armoured combat vehicles; C. Large-calibre artillery systems; D. Combat aircraft; E. Attack helicopters; F. Warships; G. Missiles and missile launchers; andH. Small arms and light weapons.

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Article 3

General Implementation

1. Each State Party shall implement this Treaty in a consistent, objective and non-discriminatory manner, bearing in mind the principles referred to in this Treaty.

2. Each State Party is encouraged to apply the provisions of this Treaty to the broadest range of conventional arms.

3. Each State Party shall take measures necessary to implement the provisions of this Treaty in order to have an effective and transparent national control system regulating the transfer of conventional arms so weapons do not end up being used for human-rights abuses, including terrorism.

4. To prevent the transfer of conventional arms being used for human-rights abuses, each State Party shall, in an objective and non-discriminatory manner assess the potential that any transfer of conventional arms does not end up being used for the following uses:

(a) would contribute to or undermine peace and security;

(b) could be used to: commit or facilitate a serious violation of international humanitarian law;

(c) commit or facilitate a serious violation of international human rights law;

(a) commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism; or

(b) commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

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Article 4Enforcement

1. This treat is not self-executing.

2. Each State Party shall take appropriate measures domestically to enforce national laws and regulations that implement the provisions of this Treaty.

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APPENDIX B

Statute Opposing Firearms for TerroristsCodified at 18 U.S.C. §§ 2001a – 2001e (Supp. 2016)

18 U.S.C. § 2001a. Statement of Purpose.

The Statute Opposing Firearms for Terrorists is an implementation of the International Terrorism Prevention Treaty under United States law.

18 U.S.C. § 2001b. Definitions.

For purposes of this subchapter:

(1) The term “person” and the term “whoever” include any individual, corporation, company, association, firm, partnership, society, or joint stock company.

(2) The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States.

(3) The term “firearm” means: any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

(4) The term “chief law enforcement officer” means any law enforcement officer within a State with supervisory authority within their jurisdiction.

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18 U.S.C. § 2001c. Transfer of Firearms; Prohibitions and Requirements.

(a) It shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer a firearm to an individual who cannot provide proof of in-state residence at time of transfer unless:

(1) the licensed importer, licensed manufacturer, or licensed dealer has—

(A) received from the transferee a statement of the transferee containing the name, address and date of birth of the proposed transferee;

(B) verified the identity of the transferee by examining the out of state, immigration, or international identification document presented;

(C) within 1 day after the transferee furnishes the statement, provided notice of the contents of the statement to the chief law enforcement officer of the place of residence of the transferee; and

(D) within 1 day after the transferee furnishes the statement, transmitted a copy of the statement to the chief law enforcement officer of the place of residence of the transferee; and

(2)(A) 5 business days (meaning days on which

State offices are open) have elapsed from the date the licensed importer, licensed manufacturer, or licensed dealer furnished notice of the contents of the statement to the chief law enforcement officer, during which period the licensed importer, licensed manufacturer, or licensed dealer has not received information from the chief law enforcement officer that receipt or possession of the firearm by the

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transferee would be in violation of Federal, State, or local law; or

(B) the transferor has received notice from the chief law enforcement officer that the officer has no information indicating that receipt or possession of the firearm by the transferee would violate Federal, State, or local law including this Subchapter.

(b) This Provision does not apply to individuals who provide proof of a state firearm permit issued after a background check.

(c) This Provision does not apply to any person who is not a licensed importer, licensed manufacturer, or licensed dealer.

18 U.S.C. § 2001d. Duty Imposed on Chief Law Enforcement Officers.

(a) A chief law enforcement officer to whom a transferor has provided notice pursuant to Section 2001c of this Subchapter may make a reasonable effort to ascertain within 5 business days whether receipt or possession of a firearm would be in violation of the law, including research in whatever State and local recordkeeping systems are available.

(1) If a chief law enforcement officer determines pursuant to this Subchapter that that receipt or possession of the firearm by the transferee would violate Federal, State, or local law including this Subchapter, he must provide the transferor with a written statement declaring the transferee ineligible to receive or possess a firearm.

(2) If a chief law enforcement officer determines pursuant to this Subchapter that that receipt or possession of the firearm by the transferee would violate Federal, State, or local law including this Subchapter, he must, upon written request, provide the transferee with a written statement of the reasons for that determination.

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(b) If a chief law enforcement officer determines pursuant to this Subchapter that that receipt or possession of the firearm by the transferee does not violate Federal, State, or local law including this Subchapter, that chief law enforcement officer may provide a statement to the transferor that the transferee –

(1) is not a fugitive from justice;

(2) has not been adjudicated as a mental defective or been committed to a mental institution;

(3) is not an alien who is illegally or unlawfully in the United States;

(4) is not otherwise ineligible to receive or possess a firearm under Federal, State, or local law including this Subchapter.

(c) Following a determination that a transferee is eligible to receive a weapon pursuant to this Subchapter, the chief law enforcement officer must destroy any records in his possession relating to the transfer, including his copy of the transferee’s statement.

(d) Nothing in subsections (a) or (b) of this Provision requires a chief law enforcement officer to take any action.

18 U.S.C. § 2001e. Penalties.

Any person who knowingly violates any provision of the Statute shall be fined $500 under this title, or imprisoned for no more than 1 year, or both.

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