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Federal appeals court denies reporter's privilege protection

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  1. Protecting Sources and Materials

    NMU         SEVENTH CIRCUIT         Confidentiality/Privilege    

Federal appeals court denies reporter’s privilege protection

  • Explaining its decision not to stay a trial court’s order compelling disclosure of three reporters’ notes, a U.S. Court of Appeals in Chicago (7th Cir.) refused to recognize a reporter’s privilege for nonconfidential materials under the First Amendment.

Aug. 12, 2003 — The First Amendment does not protect a reporter from compelled disclosure of tapes from interviews with nonconfidential sources, according to a decision issued Aug. 8 by a U.S. Court of Appeals panel in Chicago (7th Cir.).

“When the information in the reporter’s possession does not come from a confidential source, it is difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure,” wrote Judge Richard A. Posner on behalf of the court. Posner also suggested that the First Amendment-based privilege that reporters enjoy in many states and federal circuits may violate Supreme Court case law on the topic.

The appeals court’s unanimous decision explained why it refused last month to stay an order compelling three Chicago journalists to turn over interview tapes with a key witness in an Irish terrorism prosecution.

Abdon Pallasch and Robert C. Herguth, of the Chicago Sun-Times, and Flynn McRoberts, of the Chicago Tribune, interviewed FBI informant David Rupert for book they had planned to write about Rupert’s experiences spying on the Irish Republican Army.

Rupert was a witness in a trial against Michael McKevitt, who allegedly lead a terrorist organization known as the “Real IRA.” McKevitt’s attorneys asked a U.S. court to order the reporters to produce their tapes to them before they cross-examined Rupert at trial.

The reporters objected to the request on the grounds that a reporter’s privilege protects the press from forced disclosure of source materials. They argued that a court may not compel journalists to produce reporting materials unless the information sought is highly relevant to the case, essential to further a public interest and unavailable from other sources.

U.S. District Judge Ronald A. Guzman ordered the reporters to disclose the tapes, and they appealed to the Seventh Circuit for a stay. The court issued a brief ruling declining to stay the order.

The reporters handed over their tapes on July 4 to FBI officials, who pre-screened the contents of the tapes before they were provided to McKevitt’s lawyers.

McKevitt was convicted on Aug. 6 of directing terrorism.

Friday’s decision explained the appeals court’s decision not to stay the trial court’s order.

“It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances, which is the general criterion for judicial review of subpoenas,” Posner wrote. “We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”

Posner suggested that courts that have extended the reporter’s privilege to nonconfidential sources violated Supreme Court case law and “may be skating on thin ice.” He also said the reporters only wanted to keep their tapes confidential so that their book would still be “marketable” once it is released.

Pallasch said he was disappointed with the Seventh Circuit’s ruling. He said he and his colleagues did not expect the appeals court to issue an explanatory opinion, because they had not had an opportunity to present their arguments to the court.

Pallasch and the other reporters are considering petitioning the court for a rehearing of the case.

(McKevitt v. Pallasch; Counsel for Abdon M. Pallasch and Flynn McRoberts, Kathleen L. Roach, Sidley Austin Brown & Wood LLP, Chicago, Ill.; Counsel for Robert C. Herguth, Damon E. Dunn, Funkhouser Vegosen Liebman & Dunn Ltd., Chicago, Ill.) WT

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