Shield the presses

Feb 17, 2009 at 4:05 pm
Former federal prosecutor Richard Convertino can’t win his case without the information: who leaked word of an investigation into the attorney’s conduct that was part of a Detroit Free Press article in 2004.

The author of that article, David Ashenfelter, can’t say who it was without burning that source or perhaps incriminating himself.

And now, U.S. District Judge Robert Cleland, who has twice ordered Ashenfelter to sit for a deposition in Convertino’s civil lawsuit, is now considering contempt charges that could result in fines or jail time.

What’s a supportive journalist to do? Go to a panel discussion about the issue, for starters.

The Detroit chapter of the Society of Professional Journalists is hosting an event Thursday evening about the issue of a federal “shield law,” namely the lack of one that would protect reporters like Ashenfelter from being forced to testify and identify their anonymous sources.

The panel will include Chief U.S. District Court Judge Gerald Rosen, U.S. District Judge Avern Cohn, Free Press attorney Herschel Fink and a journalist “to be named later,” according to organizers. Ashenfelter is not commenting publicly while the case continues, but he is expected to attend.

The event offers free admission and coney dogs, and starts at 7 p.m. at the Free Press-News building, 615 W. Lafayette. Use the Third Street entrance.

Cleland held a hearing in the Convertino-Ashenfelter dispute last week to consider whether the Pulitzer Prize-winning reporter can invoke his Fifth Amendment rights against self-incrimination and not testify. He has not issued a ruling. Without a federal statute securing reporters’ privilege, it’s up to the courts to decide on a case-by-case basis whether journalists can avoid testifying without penalty. And, across the country, judges have decided differently.

Meanwhile, versions of a federal shield law — dubbed the Free Flow of Information Act of 2009 — were introduced in both houses of Congress last week. The measure would prevent journalists from being forced to disclose their sources, with some exceptions for things like national security and criminal proceedings.

“The time has clearly arrived for the Congress to enact this statutory privilege to address the increasing use of subpoenas to extract confidential source information from reporters,” said U.S. Rep. Rick Boucher (D-Va.), as he introduced the legislation. He had 38 co-sponsors, including John Conyers (D-Detroit) and Fred Upton (R-St. Joseph).

In 2007, the House passed an identical measure to what was introduced last week by a 398-21 vote. Debate in the Senate stalled last year; President Bush had threatened a veto, but, as a U.S. Senator and presidential candidate, Barack Obama supported it.

The bill is now before the House Judiciary Committee, which Conyers chairs.

Forty-nine states have some sort of shield law protecting journalists from revealing sources, but the lack of a federal provision has meant a variety of court interpretations about whether the First Amendment protections for a free press extend to protecting sources.

Meanwhile, reporters who have written stories based on unnamed, confidential sources have found themselves served with federal subpoenas to testify in criminal proceedings and in such civil suits as Convertino’s. Convertino, a former federal prosecutor, is suing the U.S. Department of Justice, alleging his rights as a federal employee under the Privacy Act were violated when someone — or “ones” — gave Ashenfelter information for the 2004 article about an investigation into Convertino’s conduct.

Without knowing who told Ashenfelter what or gave him what document, he can’t win a lawsuit under Privacy Act provisions, says his attorney, Steve Kohn.