By Joel Thurtell
Over dinner, an old friend who’s a journalist quizzed me about the case of David Ashenfelter, the Detroit Free Press reporter ordered by a judge to reveal the U.S. Department of Justice sources for his story that ran before the indictment, trial and acquittal of an assistant U.S. attorney.
The former federal prosecutor, Richard Convertino, has sued the Justice Department, but his case can’t proceed until he learns the names of the department employee(s) who, it appears, illegally leaked information to the reporter. Earlier, Ashenfelter tried to avoid giving evidence, using the First Amendment, but the judge rejected that. Recently, he’s invoked his Fifth Amendment right not to incriminate himself in hopes the judge will agree to excuse him from testifying.
My friend wondered if it is true, as various media have reported, that Ashenfelter could use Michigan’s journalists’ shield law if this case had been brought in a different federal appeals court jurisdiction than the Sixth Circuit Court of Appeals in Cincinnati, which has rejected the state shield. He referred me to a March 4-10, 2009 Metro Times story, “Without a shield: legal precedent leaves Detroit journalist unprotected.”
“It’s not true,” I told my friend. “The judge didn’t base his opinion on an appellate court ruling. He discussed that possibility and rejected it. He based his opinion on a Supreme Court ruling that says nobody, not even a journalist, can keep from testifying if he’s witnessed a crime.”
“The problem,” I said, is that people aren’t reading the judge’s opinion.
Later, though, I wondered: Could I have misread that August 2008 ruling by U.S. District Judge Robert Cleland in the case of Richard G. Convertino v. United States Department of Justice?
I went home and printed out a fresh copy of the judge’s ruling. I found a pink highlighter and began reading — and marking — the ruling. Later, I compared my latest copy with the one I read and marked in yellow last fall. I’d marked the same passages. My understanding of the ruling had not changed.
Why is this important? Well, if it’s true that but for the Sixth Circuit, the reporter would be protected from testifying, then this might be a poster case for pushing Congress to enact a federal shield law. That line of reasoning is less persuasive, though, when you realize that the judge’s ruling is based on a U.S. Supreme Court opinion, and not on the Sixth Circuit’s holding.
It’s even less appealing if we consider that the whistleblower in this case is Convertino, whose six-minute statement to a congressional committee as a subpoenaed witness prompted his superiors at Justice to whack his reputation and try to put him in jail. Ashenfelter is not protecting the whistleblower. Rather, he’s shielding the officials who illegally leaked information about a whistleblower.
Don’t take my word for it, or that of other media. Please read the judge’s opinion for yourself.
Here is what I learned from my first and subsequent readings of Judge Cleland’s ruling:
The judge held that the Sixth Circuit Court of Appeals opinion dealing with the Michigan reporters’ shield law was not relevant in the Free Press case.
Instead, the judge made his ruling based on a U.S. Supreme Court ruling, Branzburg v. Hayes, 408 U.S. 665 (1972). This was a majority opinion that, according to Judge Cleland, “declined to recognize a First Amendment testimonial privilege for reporters.”
Cleland wrote, “This is not an instance where the reporter’s informant reveals hitherto dangerous or illegal activities that, being unlikely otherwise to come to light, result in reporting that is obviously more weighty in a court’s calculation of First Amendment safeguards. Rather, the situation is more akin to a reporter’s observation of criminal conduct from which the Supreme Court has explicitly stripped constitutional protection: ‘we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.’ Branzburg, 408 U.S. at 692.
“For similar reasons,” Judge Cleland continued, “any reliance Ashenfelter placed on the Michigan reporters’ privilege is misplaced. A reporter should not be allowed to use a state law to shield himelf from disclosing his sources when the communication sought to be protected is a violation of federal law. Such reliance should not be encouraged by the court. Thus, the burden on Ashenfelter’s First Amendment interests is minimal and the damage to his reliance on the Michigan shield law inconsequential. Both concerns are overbalanced by Convertino’s countervailing interests.”
The judge’s 23-page ruling is not the private property of journalists and lawyers. It’s on the Web. You can read it, too.
Drop me a line at joelthurtell(at)gmail.com
