Off guard: The Free Press and the leakers

By Joel Thurtell

Several weeks ago, I began writing an essay about the case of former federal prosecutor Richard Convertino, who’s suing my former paper, the Detroit Free Press, to force Pulitzer Prize-winning investigative reporter David Ashenfelter to name the people who leaked, apparently illegally, confidential information Ashenfelter used in a 2004 story about Convertino.

A federal judge has ruled that Ashenfelter must give up his sources. The Free Press contends this is a First Amendment issue. U.S. District Judge Robert Cleland ruled it was not.

Today is the day when Ashenfelter must decide whether to give up the names or possibly go to jail.

My writing on this issue was interrupted by a new book project, by reporting on Ambassador bridge owner Manuel “Matty” Moroun, by an assignment to write a long article about the health of the Rouge River and by other things memorable and not. I set my essay aside until today, December 8, 2008, when I noted that the Free Press had a long article about the Convertino-Ashenfelter case. I’d hoped the paper would finally completely explain Judge Cleland’s rationale for ordering Ashenfelter to talk.

It didn’t happen.

I’d planned to write more on Convertino-Ashenfelter, but a projected section called “Truth and relativity at the Free Press” will have to wait. I decided to publish this essay now in hopes it will clarify the issues for general readers as well as for journalists.

I have some advice for Richard Convertino: Dave Ashenfelter wasn’t the only one at the Free Press who knew the names of his federal sources. Why don’t you subpoena the people who edited his story?

I have tremendous respect and admiration for David Ashenfelter. I have some advice for him, too: It’s not too late, Dave — get a second legal opinion.

— JT

Off Guard: The Free Press and the leakers

No person employed by the Free Press shall, for any reason, prepare for publication material which is inaccurate, misleading or false.

ARTICLE XI, Section 1 – “Professional Integrity,” from Agreement between Detroit Free Press, Inc. for Detroit Free Press and Newspaper Guild of Detroit

CONFIDENTIALITY Because the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality. If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.

— DETROIT FREE PRESS ETHICS POLICY, updated March 7, 2001

Getting it straight

Sometime in the early 2000s, editorial staffers of the Detroit Free Press were called to a meeting in Room 100, the big, dark-paneled conference room on the ground floor of the old Albert Kahn-designed Free Press building at 321 W. Lafayette in Detroit. The meeting was led by Herschel Fink, a nationally-known First Amendment attorney who represents the Free Press in most litigation involving libel, freedom-of-information and other freedom-of-the-press issues. Fink spoke with urgency to the paper’s journalists that day partly because he was worried about a trend that had newspapers losing lawsuits filed by people who had served as anonymous sources for news stories and who claimed newspapers had broken promises to keep their identities secret.

Former confidential sources were collecting money awards from courts by claiming that newspapers had promised them anonymity, but later reneged and identified them. Broken promises were putting newspapers at considerable financial risk, Fink said.

Though I don’t recall the exact date, I remember that meeting well. I was there. I was a Free Press reporter from November 12, 1984 until November 30, 2007, when I retired. The meeting made a big impression on me, because it forced me to reflect on how I’d dealt with sources who asked for anonymity. While I’d never signed a written contract, I at least had assured people I’d keep their names out of my stories. While I’d never made an absolute promise, it occurred to me that even an oral commitment to keep the source’s name out of the story might be turned on me if somehow – in violation of that commitment — that person’s name got into print. However, my assurances were limited to making sure names didn’t get into the paper. I never promised a source that I would protect him or her to the extent of going to jail if a judge ordered me to give up the source’s name. Come to think of it, I don’t know of anyone who has signed such an agreement.

I recall Herschel Fink repeating his message over and over that we reporters must never, never enter into agreements that might be construed as binding contracts with sources that would obligate the newspaper in ways that might come back to haunt them in court. And cost them money.

I suspect this meeting took place around March 2001 because on March 7, 2001, the Free Press modified the DETROIT FREE PRESS ETHICS POLICY regarding the use by reporters and editors of anonymous sources. It’s important, by the way, to be clear that decisions about granting anonymity are not supposed to be made by the reporter alone.

Here’s how the new wording read:

CONFIDENTIALITY Because the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality. If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.

More recently, the Supreme court has ruled that the First Amendment does not bar a breach of contract suit for damages when a newspaper breaks a promise of confidentiality. That breach can arise from disclosing a source’s name, inadvertently or otherwise, from too detailed a description of the source or from an inadequately disguised photograph.

These legal concerns suggest that unnecessary promises of confidentiality be avoided, and the need for the promise be weighed against its value.

In making such a promise, take care to avoid ambiguity. Keep the promise specific; a pledge to not use a source’s name is preferable to agreeing to make the source unidentifiable.

Also, take reasonable steps to insure a promise is kept: Make sure the commitment is known by supervisors and by photo editors and others who might inadvertently disclose an identity.

If a promise goes beyond the source’s name, consider reading the description back to the source to insure the source is comfortable with it.

If there appears to be a need to break a promise, seek advice from legal counsel.

Absolute promises — a journalistic no-no

For readers who are not part of the process of creating news, but who follow news in newspapers or on television, radio or the Internet, it may come as a surprise that reporters are forbidden to make absolute promises of confidentiality. That’s because conflicts between reporters and prosecutors and others seeking journalists as witnesses usually are portrayed in the press and by ancillary press support organizations like the Reporters Committee for Freedom of Information, as free speech issues.

The other side, that reporters should give evidence as a citizen’s duty in the quest for justice, rarely gets ink.

It may also be something of a surprise for lay readers to learn that the decision to keep a news source’s name out of print is made by not just the reporter who talks to the source, but by one or more of the paper’s top editors. There is a chain of command and of responsibility. And the driving force is not freedom of expression, but economics.

Still, the most jarring part of the Free Press ethics policy re-write for general readers most likely is the prohibition on granting absolute confidentiality. That doesn’t conform to the general sense one gets from reading media reports of reporters’ conflicts with prosecutors and judges who sometimes order the journalists to divulge the names of their sources.

A general reader might be pardoned for believing that reporters make absolute promises. That reporters hedge their commitments seems to clash with the reportage, for instance, in the Valery Plame case, where then New York Times reporter Judith Miller was jailed for contempt of court after she refused to name her source. I remember wondering at the time just what kind of agreement Miller had with her source. If reporters have not made absolute promises to sources, what would stop them from giving up the names under threat of jail for contempt?

What seems absolute from the reporting, and hence is interpreted as absolute by readers, is actually flexible in the eyes of editors, publishers and the attorneys who advise them. They retain the right to renege on these confidentiality agreements. If that is so, why do reporters feel compelled to keep their word, regardless both of consequences and the fact that they are not legally obligated to do so?

The standard journalism school answer for why reporters refuse to testify is that if reporters give up names, they send a message to other sources that reporters can’t be trusted, and that signal deters others from giving information. Naming names would have a chilling effect on collecting information vital to maintaining our democracy.

The fact is, though, that this contention is more hypothesis than established fact. Has the occasional naming of sources’ names created a chilling effect? I don’t recall seeing this established either by the industry or by, say, the Reporters Committee for Freedom of Information. Is it established fact, or just one of those oft-repeated truisms that never have been tested?

There is another side to this issue, however. It’s the need from a court’s perspective to have witnesses provide information crucial to deciding criminal or civil cases. A normal citizen who is a witness must comply with a subpoena demanding his or her testimony in a trial. Why should a journalist claim to be exempt, even given First Amendment considerations, where justice requires the reporter’s testimony to get a full set of facts?

The argument that journalists are no better than their peers, which is the position of prosecutors or civil plaintiffs seeking reporters’ testimony, is not often included in media reports about judicial cases seeking reporters’ testimony. Nor is it common knowledge that newspaper attorneys urge reporters to qualify their promises to sources, thus weakening the commitment and making less morally necessary the absolute need for reporters to defy court orders and go to jail.

The Free Press’ 2001 ethical guideline revision demonstrates how jury awards have tempered the ardor of publishers who fear having to pay the plaintiffs. Reporters are ordered to hedge their commitments of confidentiality. Because those hedges are not reported when reporters are threatened with jail, the public and even most journalists don’t have a complete set of facts when they try to evaluate the justice of news organizations’ refusals to testify as witnesses in court. It’s implicit in the reporting we read in newspapers that reporters have promised their sources they’ll preserve their confidentiality even if it means going to jail.

But if they never made that promise, why would they go to jail?

To get attention? To be martyrs in a free speech cause they believe with thousands of other journalists is holier than a citizen’s duty to tell the truth?

The Free Press ethics document makes it clear that no Free Press reporter is allowed to make confidentiality calls solo. At least one department head must be in the loop, and if a confidentiality promise is to be broken, the paper’s attorney is to be involved. Thus, if a time should ever arrive when the decision-making process on a grant of anonymity needed to be traced, more than one witness would be necessary to give that information.

No lies

While the Free Press ethics policy spends seven paragraphs ordering editorial staffers how and how not to make promises to sources, there is one thing missing: How to explain the use of anonymous sources to readers. At the very end of the 9-page “Policy,” the topic comes up in one paragraph under “SOURCES”:

“We must strive to explain each time to readers why we’re not naming a source. (The explanation doesn’t have to accompany the first reference to the source, but should be high enough to give the reader appropriate knowledge.)”

Presumably that means the paper will tell the truth about why a source is not being named.

While the Free Press ethics policy is often changed by company managers, it is not part of the collective bargaining agreement between the Free Press and The Newspaper Guild and so is not recognized by the union.

However, Article XI, Section 1 of the Guild-Free Press contract applies to anything written by the paper’s employees – union writers and non-union editors alike — for publication in the Free Press: “No person employed by the Free Press shall, for any reason, prepare for publication material which is inaccurate, misleading or false.”

That seems clear enough. It is the fundamental test of credibility for readers. Neither reporters nor editors nor a combination of the two shall publish a lie.

What is a leak?

According to answers.com, “to leak” means “to disclose without authorization or official sanction.”

In journalism, there are different kinds of leaks. For instance, sometimes reporters get tips from whistleblowers. These are people employed either by private firms or government who are privy to knowledge about wrongdoing who may subject themselves to risk of loss of job and livelihood or may even be subject to injury or death from retaliation by bosses unhappy with the leak of information. There are laws that protect whistleblowers.

Then too there are people privy to inside information who want it reported for unworthy reasons, such as influencing the stock market, harming a business rival or embarrassing an enemy. Journalists often hold their noses, but go ahead and use information from less-than-admirable leakers in order to publish information they believe the public should know, or simply to beat rival publications to a story.

Leakers in this category would not likely be subject to retaliation, though, including by angry bosses. In fact, as in the case of Richard Convertino that I will be discussing soon, they may actually be those bosses, out perhaps to sabotage their target’s good name and derail his defense in a criminal trial they have planned for him.

Some leakers are heroes, some are not.

Reporters need to be aware of the motives of leakers. Often, very important stories come from leaks, stories that can give one media outlet a scoop over its rivals. Stories that spike newsstand sales have great economic value to newspapers, especially in a time when circulation nationwide is in steep decline. But we need to remember that leakers always have motives, and often they are not altruistic.

If a reporter is going to grant anonymity to a source, how does he or she describe the reason for using the confidential source? In the case of a whistleblower who might, say, be fired from a job as revenge for having provided the reporter information without permission, it seems fair to put in print the explanation that the person’s name was withheld for fear of retaliation.

But what if it’s the boss or bosses who are leaking information to discredit an underling who has fallen out of favor with them? How do you describe that person’s motivation for not wanting to be identified?

That is kind of tough. Readers might not be as sympathetic to your story-telling if you told them up front that your information came from managers intent on ruining the career of a hapless underling.

What if the leak itself is a crime? Federal grand juries are by law required to deliberate in secret. Nobody, including most of all the prosecutors who lead grand juries, is empowered to reveal the contents of their discussions.

That is against the law. So how does a journalist intent on printing illicitly-gained information explain this to readers?

Well, if leaking the information happens to be a crime, a reporter might simply state the source’s name is being withheld because it is a federal crime for a government employee to disclose the information being published in the newspaper.

I don’t remember ever seeing that explanation, but it would be an honest call, at least.

This is the position David Ashenfelter must have found himself in as he was preparing the story he wrote for the January 17, 2004 edition of the Detroit Free Press. The story, headlined “Terror Case Prosecutor is Probed on Conduct,” was based on information he got from someone inside the U.S. Department of Justice.

The information came as a leak because it was a violation of federal law for anyone in the Justice Department to reveal that the department was investigating Richard Convertino, an assistant U.S. attorney, for purported misconduct by him while he was prosecuting a terrorism case. The information was leaked to the Free Press by people presumably involved with or having knowledge of the fact that the Justice Department was getting ready to file criminal charges against Convertino.

A story line weighted against Convertino, published before his trial, presumably also would give readers a more negative than positive impression of Convertino. All of this is part of the fundamental knowledge base possessed by a newspaper reporter covering a federal court anywhere in the country. These were assumptions David Ashenfelter and his editors must have known as they prepared his story for publication early in 2004.

Deja vu Valery Plame

Besides violating federal law by giving Ashenfelter the information about Convertino, the tipster or tipsters (Ashenfelter used the term “officials,” plural) revealed the identity of a confidential government informant – a Middle Eastern man the FBI used both as a translator and to infiltrate Arab organizations in the Detroit area and provide important information to the government post 9/11. In his Free Press story, Ashenfelter discussed at length the information his confidential government source provided about the investigation into Convertino, and Ashenfelter and the Free Press also published the identity of the confidential informant, forcing him to leave the country for fear of his safety.

Convertino comes back

Convertino sued the Justice Department and three of his superiors.

After a federal criminal trial, he was acquitted of all charges the government – his former colleagues – brought against him.

What kind of leaker?

The question for journalists in the position of David Ashenfelter and his bosses mulling the grant of anonymity to a Justice Department source in the Convertino leak case would be whether this leaker fell under the category of “whistleblower” and thus someone who might be subjected to retaliation. Or was this someone with an ax to grind, whether a personal ax or a policy ax, but nonetheless someone who would not likely suffer retaliation from an institution whose instructions he might well be carrying out?

In the case of Ashenfelter and his Free Press editors, the choice was simple: They opted to describe their sources as Justice “Department officials, who spoke on condition of anonymity, fearing repercussions.”

On the face of it, that is at best a disingenuous description of an anonymous source. Remember that the Free Press ethics policy in effect in 2004 instructed staffers using anonymous sources that “we must strive to explain each time to readers why we’re not naming a source.”

Notice that the Free Press didn’t say the source feared “retaliation.” If they had said the source was afraid of a vendetta by bosses, the writers would have implied that the source was an underling who might have been punished by his or her superiors. But if the source happened to be top officials in the Justice Department, they would not have been in danger of retaliation, since the only potential retaliators would have been the bosses-as-leakers themselves.
“Repercussions” or “retaliation”

“Repercussions” is a much more imprecise term. There is even a certain misleading straightforwardness to it. Readers would not be expected to draw this conclusion, but the editors might well have argued that citing fear of repercussions was accurate, since top Justice officials leaking the material were breaking the law and thus potentially subject to criminal sanctions.

Convertino’s quest through a civil lawsuit and subpoenas to Ashenfelter and the Free Press for the names of his alleged persecutors could definitely be classed as a “repercussion.” If Ashenfelter or one or more of his editors were to reveal those names, the sources might be prosecuted for the crime of releasing secret information for publication. That could be a career-ender at least, and might lead to prison time. So yes, Ashenfelter’s sources might well have feared “repercussions.”

You could argue that it was accurate to portray Ashenfelter’s sources as people afraid of “repercussions” similar to a burglar afraid of the repercussions that might follow being caught stealing someone’s silverware. The expression “repercussions” probably seemed convenient to Ashenfelter and/or his editors, since it appeared at least narrowly honest.

It would have been an outright lie to have said the sources feared “retaliation,” but “repercussions” was vague enough that they could argue that it described the sources’ motives for wanting anonymity without letting on there was more to the case.
Credibility and sources

There was more to consider, because of another requirement in the 2004 Free Press ethics policy: “When we’re forced to use unnamed sources, we must strive for multiple sourcing. When we can’t name a source, we must be as specific as possible about identifying the person, to attempt to preserve the credibility of the story.”

This paragraph from the ethics policy explains why the Free Press used the plural form when referring to “sources.” According to the in-house rules, Ashenfelter could not rely on information from one Justice Department source. He needed to confirm that information with at least one other source privy to the same information about the Convertino investigation as the primary source. It would appear, then, that at least two people at Justice who were in the know spoke confidentially to Ashenfelter knowing he could write a story based on information they were forbidden to give the newspaper.

But we also see that Ashenfelter and his bosses at the Free Press were required to “be as specific as possible about identifying the person, to attempt to preserve the credibility of the story.”

Was the Free Press’ description of the leakers as Department of Justice sources who feared that identification would cause “repercussions” being “as specific as possible about identifying” those sources? On the face of it, that requirement for being “as specific as possible” by itself is so vague that one might argue, as Free Press staffers likely did, that Ashenfelter’s description met the criteria.

In retrospect, it seems to me that the “repercussions” tag was vague, and served more to hide the newspaper’s own motives and those of its sources than it did to tell readers why the government officials didn’t want their names used.

Illegal leak?

The big fact that Ashenfelter’s story didn’t mention was that the very dissemination of the information on which his story may have been based on an illegal act, according to U.S. District Judge Robert Cleland.

The Free Press had received information that was illegally imparted to it and chose to publish it, but the newspaper also chose not to tell its readers that its sources were committing crimes by revealing secret, legally protected information.

According to Judge Cleland, by refusing to name his sources, Ashenfelter and the Free Press – which hired and pays the lawyer defending their reporter – are shielding criminals.

According to Judge Cleland, disclosure of secret information about the government’s probe of Convertino before he was indicted appears to have been a policy leak meant to discredit an employee with whom Justice Department managers were displeased, possibly because he had earlier testified before Congress and criticized his bosses.

At this point, it helps to re-read that single sentence in the Guild-Free Press contract on “professional integrity.”

“No person employed by the Free Press shall, for any reason, prepare for publication material which is inaccurate, misleading or false.”

Did the Free Press lie to its readers about why it granted confidentiality to the Department of Justice officials who leaked the Convertino story to Ashenfelter?

Soon after the Free Press ran Ashenfelter’s story about the Justice Department investigation of him, Richard Convertino filed his lawsuit against the Justice Department, claiming his colleagues’ leak to the newspaper violated his right to privacy under the federal Privacy Act. A key part of his lawsuit is finding out who the leakers are.

It turns out the Inspector General of the Department of Justice investigated and narrowed the possible leakers down to about 30 people in the department, but all of them denied having talked to Ashenfelter. Convertino had the court subpoena Ashenfelter, arguing he’s exhausted all other means of identifying the leakers.

Ashenfelter knows who they are, but he’s not saying. The Free Press has claimed he should be immune from subpoena because he’s a journalist and forcing him to reveal his sources would chill the newspaper’s efforts to uncover wrongdoing in government. The Free Press takes a First Amendment approach – reporters must be shielded from attempts to coerce their testimony about confidential sources, or else there will be a chilling effect on news gathering that will harm the public’s right to know.
Judge Cleland on August 28, 2008 ruled that Ashenfelter is not protected by Michigan’s press shield law and must testify.

Choosing its words

The Free Press chose its words far more carefully for Ashenfelter’s January 17, 2004 story breaking news of the Convertino probe than it did for its story September 11, 2008 Detroit reporting Judge Cleland’s ruling. The story cast the case purely as one of a reporter protecting sources who might be “retaliated” against and stressed that the order to testify “hampered the media’s ability to aggressively cover government…”

The word “retaliate” did not appear in the January 17, 2004 Ashenfelter story about the grand jury investigation of Convertino, possibly because it would have misled readers into thinking the leak came from underlings who could suffer bureaucratic retribution, rather than supervisors whose only fear was being found out and possibly prosecuted for leaking secret information.

The pretence of “repercussions” disappeared as more than four years later Free Press Editor Paul Anger said in a Sept. 11, 2008 Free Press article, “We are disappointed. There are plenty of courts that have backed up the principle that reporters should not have to give up the identifies of confidential sources. What sources often bring is information that the public has a right to know. If they fear their identities will be revealed and they could be exposed to retaliation, a lot fewer people with valuable information will want to come forward.”

“Retaliation” suggests the leakers were subordinate people who might be subject to revenge. Of course, we don’t know who the leakers were, but we know that Ashenfelter was more circumspect in 2004, using the fairly meaningless term “repercussions.”

The use of the word “retaliation” four years later is at best inaccurate, but certainly it is misleading. Editor Anger’s statement might be relevant if the reporter’s sources had been whistleblowers who could possibly become victims of retribution. But it’s hard to posit that Department of Justice officials with secret information and plans to prosecute Convertino were up to the public good when they leaked their secret information to Ashenfelter shortly before having Convertino indicted by a federal grand jury.

It’s also hard to understand how Free Press editors, no doubt in touch with their attorneys, would not fully understand the difference between “repercussions” and “retaliation.”

A judge rules

The September 11, 2008 Free Press story might well have been written without Judge Cleland’s opinion in hand. If, on the other hand, the reporter and editors had access to the ruling and read it, I find it hard to understand why they failed to report such comments (omitting legal citations) as these by Judge Cleland:
The identity of Ashenfelter’s sources is within the scope of discovery because it is “nonprivileged matter” and “relevant to [a] party’s claim or defense.” As the DOJ points out in its brief, Convertino cannot sustain his burden of proof on the Privacy Act claim without identifying Ashenfelter’s source. To prove his Privacy Act case, Convertino must demonstrate that the agency acted “in violation of the Act in a willful or intentional manner, either by committing the act without grounds for believing it to be lawful, or by flagrantly disregarding others’ rights under the act. To establish that the DOJ committed a willful or intentional violation, he must present evidence of the disclosing person’s state of mind, which requires him to identify and question those who perpetrated the allegedly improper disclosure. As Convertino’s claim depends on his ability to question Ashenfelter’s sources, their identities are undoubtedly relevant…

Convertino’s subpoena of Ashenfelter does not amount to discovery abuse. Convertino is not asking for information that he knows, has already received through discovery from Ashenfelter or another source, or can ascertain for other intelligence he has accumulated during discovery. He attempted to identify Ashenfelter’s sources by deposing the DOJ, but instead learned that an extensive internal investigation, conducted by the Department’s OIG (Office of Inspector general), was only able to narrow the pool of potential “leaks’ to approximately 30 employees. It certainly will be less convenient, more burdensome, and more expensive for Convertino to depose each of these officials individually. Doing so is likely to be futile, as the OIG has already obtained an affidavit from each denying that he provided information to the Free Press. It is unrealistic to expect Convertino to have better results, given his inferior resources and the threat of perjury sanctions looming over any individual that may have already provided false information to OIG inspectors in an affidavit. Under these circumstances, turning to Ashenfelter – the one party absolutely known to have the information Convertino needs – is hardly an abuse of discovery. As detailed above, Convertino has tried to use other means of discovery to unmask Ashenfelter’s sources. He did not go directly to Ashenfelter until it became reasonably clear that doing so would probably be the only way for him to learn which official or officials supplied the reporter with the relevant information.

The potential benefit of the information is great. Convertino’s case has a pressing need for the identity of Ashenfelter’s sources, and discovery from Ashenfelter seems, at this point, the only what to get it. At stake is a case brought under the Privacy Act, a statute meant to “prevent the kind of illegal, unwise, overbroad, investigation and record surveillance of law-abiding citizens,” and “promote observance of valued principles of fairness and individual privacy.”

The burden to Ashenfelter of Convertino’s request does not outweigh these factors. The discovery requested of Ashenfelter – his presence at a deposition and the presentation of documents already within his control – will by no means cripple his resources, and in any case his burden is small when compared to the money damages Convertino could potentially recover in this action.

The biggest factor counseling against disclosure is harm to Ashenfelter’s First Amendment interests. Virtually every case in which a court compels a reporter to disclose a confidential source implicates at least some risk, direct or otherwise, that news gathering activities protected by the First Amendment may be hindered…

However, this generalized danger is minimized in this case, as the anonymous DOJ officials may well have violated federal law by communicating with Ashenfelter as to these matters. If the informants indeed violated the Privacy Act as Convertino alleges, potential sources of further similar violations should be deterred from interactions of this kind with representatives of the press. This is not an instance where the reporter’s informant reveals hitherto unknown 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, this 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.”

For similar reasons, any reliance Ashenfelter placed on the Michigan reporters’ privilege is misplaced. A reporter should not be allowed to use a state law to shield himself 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.

Not well-known

Normally, I try to quote briefly from legal opinions or any other source material to save wear and tear on readers. But in the case of Judge Cleland’s ruling, I made an exception because you are not likely to read this opinion in media reports about the Ashenfelter-Convertino case. I don’t mean just that you won’t read it in the Detroit Free Press, which is still as of December 8, 2008 construing it as solely a First Amendment issue. (Today’s (Dec. 8) Free press story puts some of Cleland’s ruling in the mouth of Convertino’s attorney, thus depreciating its credibility.)

That First Amendment approach has been echoed by other media organizations like Gannett News, the Associated Press and Reporters Committee for Freedom of Information. The media have interpreted this case as a First Amendment one, which it is not, according to Judge Cleland.
The judge stated that Ashenfelter and the Free Press are covering up criminal activity, for which there is no First Amendment protection.

Judge Cleland states the Free Press let itself be used by federal prosecutors trying to use the newspaper against another prosecutor.

Retribution

Why might Convertino’s bosses be displeased with him?

Well, for one thing, Convertino had expressed his opinions –negative about the Justice Department — before a congressional committee, and Justice Department officials did not like that.

Instead of acknowledging the judge’s ruling, the Free Press has chosen to represent the case as one posing possible “retaliation” to sources.

That other media and media organizations have chosen to adopt this incomplete and perhaps false interpretation also may not be surprising.

There is a movement by media organizations for a national law that would shield reporters from having to testify, though it’s doubtful it would extend to reporters covering up criminal activity. But media organizations and media companies have a vested interest in making David Ashenfelter into a poster child for First Amendment-based arguments for reporters’ immunity to subpoena.

It may well be that newspapers like the Free Press and organizations like the Reporters Committee can’t discuss this issue thoroughly, dispassionately and honestly because they are committed to pushing for political change closely linked to this kind of case.

The case has some urgency for David Ashenfelter. The reporter will have to decide (today, according to the Free Press) whether to give reveal his sources or stick to his guns and remain silent, even if the judge sends him to jail for contempt of court.

Reporters’ obligations

Reporters in Ashenfelter’s situation need to be very clear in their own minds why they are defying a court order. Is Ashenfelter, for instance, legally obligated to remain silent? The answer to that depends on what kind of agreement, if any, he had with his Justice Department sources.

After that meeting with Herschel Fink, no Free Press reporter should have better been unaware of the paper’s rules of engagement for use of confidential sources.

It seems reasonable to assume that Ashenfelter followed those rules when reporting his January 17, 2004 story about the Convertino probe, and that he would not have committed himself to making what the 2004 ethics policy update called “unnecessary promises of confidentiality.”

But if he didn’t agree to absolutely guarantee the confidentiality of his Justice Department sources, why is he refusing to name their names?

If he is not legally obligated to withhold their names, why is he refusing to give them up?

Is he willing to go to jail rather than testify?

Why would he be willing to go to jail if he isn’t legally obligated to keep his sources’ names secret?

Maybe he doesn’t want to give in because he doesn’t want to promote a chilling effect on reporters’ ability to use confidential sources.

But Judge Cleland has pointed out that his sources may have committed crimes by talking to him.

If that is the case, why would he want to shield people who may turn out to be criminals?

Well, he used their information, presumably knowing they were forbidden by law to give it to him. Could he be charged with aiding and abetting the crime?

Given that Editor Anger has given an incorrect or at least incomplete interpretation of the case, a reporter in Ashenfelter’s situation might want to ask whether the newspaper’s interest and his own are the same.

Is the newspaper trying to make some propaganda point? If so, is that position congruent with the reporter’s personal interest?

Is the newspaper protecting itself from possible criminal liability in a case that could expand if Ashenfelter names names?

Does that criminal liability extend to Ashenfelter and maybe others at the Free Press?
Second opinion

Would the reporter be better served by seeking his own attorney rather than letting the newspaper’s counsel represent him?

It’s important to re-emphasize a point the judge made: This was not an investigative story in the sense that the reporter dug up important information the public needed to know about government. This was a story of opportunity. Federal prosecutors gave Ashenfelter a scoop, though the disclosure may have been illegal. It was his choice and his editors’ choice how to use the information, and they might have chosen not to publish a story until or unless Convertino was indicted.

Furthermore, if Ashenfelter followed the paper’s guidelines for using anonymous sources, then he must have consulted with editors up the chain of command. That means he’s not the only one who knows who his Justice Department sources are. True, the Free Press was sold a year and a half after he broke that January 2004 Convertino story, Those top editors are long gone from the Free Press. But I have not heard that any of them has died. They are still reachable by phone, fax, email or subpoena.

Maybe those former bosses would give up the names of Ashenfelters’ sources and take the reporter off the spot.

Drop me a line at joelthurtell(at)gmail.com