A Detroit Free Press reporter ordered to testify about the confidential sources he used to report on a federal investigation of a former U.S. prosecutor urged the court this week not to compel his testimony.
In papers filed Monday, reporter David Ashenfelter argued that he should not have to testify about his coverage of a Department of Justice misconduct investigation into former assistant U.S. Attorney Richard Convertino.
Ashenfelter wrote a Free Press article in 2004 quoting anonymous Justice officials alleging that Convertino was being investigated for misconduct and withholding evidence in a Detroit terrorism case. Convertino filed a Privacy Act lawsuit against the department in federal court in Washington, D.C., and subpoenaed Ashenfelter in Detroit to testify about his sources.
"This is a very significant case," Ashenfelter’s attorney, Herschel Fink, said. "This was public-interest reporting of the highest magnitude. This was information that the public was entitled to. The protection of confidential sources is often the only way of bringing important information to the public."
In late August, Judge Robert Cleland in the U.S. District Court for the Eastern District of Michigan ordered Ashenfelter to give up his sources. Cleland reasoned that Ashenfelter is not protected in Michigan because the Sixth Circuit does not recognize a reporter’s privilege.
Convertino’s lawyers were set to take Ashenfelter’s deposition this week. Fink filed motions in both Michigan and D.C federal courts asking that the case be moved to Washington, where Convertino’s underlying Privacy Act claim is being litigated, and that both courts protect Ashenfelter from having to be deposed.
Fink argued that the D.C. court needs to decide the underlying merits of Convertino’s claim before it makes a determination about whether Ashenfelter is protected from having to testify.
In a twist on the standard reporter’s privilege argument, Fink urged the court to adopt the approach many courts have taken to protect anonymous speakers on the Internet: Balancing the threat to the First Amendment against the strength of the plaintiff’s underlying claim.
“Before a plaintiff alleging defamation or a similar theory may discover the identity of an anonymous online speaker, he must first prove the viability of his claims,” Fink wrote. “This scrutiny . . . should be applied here. If Convertino’s Privacy Act claim is subject to summary judgment, or his need for the information simply does not outweigh the specific and societal detriment that disclosure would inflict, his motion must be denied.”