Reporter Refuses to Name Sources Who Smeared DOJ Whistleblower
On September 11, we reported on the whistleblower case of former federal prosecutor Richard Convertino. Mr. Convertino has brought a Privacy Act action against the US government for leaking disparaging information with the goal of smearing Mr. Convertino in retribution for blowing the whistle on DOJ mismanagement of terrorism investigations. Last month, Federal Judge Max Cleland ordered Detroit Free Press reporter David Ashenfelter to appear and testify in depositions regarding the identity of his confidential DOJ sources who leaked the information.
Now, Mr. Ashenfelter is still refusing to testify, in violation of Judge Cleland's order. Steve Kohn, who is Mr. Convertino's attorney, has indicated that Mr. Ashenfelter could be held in contempt for his actions. This story has been reported nationwide, including articles with the Associated Press and in The Detroit Free Press
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Here's some of what the federal judge wrote about Ashenfelter's obligation to testify, reporter or not, Pulitzer Prize or not:
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The Supreme Court has explicitly stripped constitutional protection from a reporter’s observation of criminal conduct:
“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, 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.
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About the Branzburg decision, noted Jurist Floyd Abrams commented that:
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[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. No such protection had ever been held to exist.
Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best.