If a court rejects my First Amendment-based privilege, is there another constitutional right on which I may rely?

In very limited instances that have occurred only rarely, a journalist may be able to rely on his or her Fifth Amendment right against self-incrimination in refusing to testify about confidential sources or other information. The facts of the case, however, have to be such that somehow, for whatever reason, the reporter fears a real danger of incrimination if he or she testifies and provides the requested information. The use of this constitutional protection is an outgrowth of the weakened reporter's privilege and thus often follows a court's ruling that this First Amendment-based privilege is inapplicable. 

The quintessential example of a successful invocation of the Fifth Amendment in this context is Detroit Free Press reporter David Ashenfelter's reliance on this constitutional right to avoid naming a confidential source who leaked information to him about the Department of Justice’s internal investigation into the alleged misconduct of the former federal prosecutor assigned to the first federal terrorism case brought to trial after the 9/11 attacks. The former prosecutor needed the identity of the source to proceed on his Privacy Act claim against the Department of Justice. That suit was based in federal court, so Ashenfelter could not rely on Michigan's shield law; moreover, no First Amendment-based privilege exists in the U.S. Court of Appeals in Cincinnati (6th Cir.), the federal appellate court with jurisdiction over Michigan. However, because the former prosecutor alleged in court papers and on a blog that Ashenfelter was in a criminal conspiracy with whoever leaked the information, he asserted a Fifth Amendment right not to testify, an objection the court accepted.

The unique allegations by the party seeking the reporter’s testimony in this case lent themselves to a successful invocation of the Fifth Amendment privilege. Ordinarily, journalists cannot rely on the constitutional protection against self-incrimination in subpoena battles, and other instances of such have occurred only rarely.

In June 2008, an Illinois judge allowed Chicago Sun-Times music critic Jim DeRogatis to plead the Fifth Amendment in declining to testify in singer R. Kelly’s child pornography trial because DeRogatis himself might have committed a crime by copying a tape that prosecutors alleged depicted Kelly having sex with an underage girl. Like that on Ashenfelter’s claim, this ruling came only after DeRogatis unsuccessfully invoked the First Amendment-based reporter’s privilege, which the judge found inapplicable.

Shortly thereafter, The Washington Times national security reporter William Gertz tried the same tactic when subpoenaed to testify about improper leaks of grand jury information he relied on for an article about the prosecution of a Chinese spy ring. The federal judge in California dodged the Fifth Amendment issue, instead ruling that Gertz was protected because the public’s interest in unfettered reporting outweighed the interest in forcing a journalist to testify.