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Reporters Committee says Ashenfelter case shows need for shield law

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  1. Protecting Sources and Materials
The Reporters Committee for Freedom of the Press issued the following statement after a federal judge in Detroit ruled today…

The Reporters Committee for Freedom of the Press issued the following statement after a federal judge in Detroit ruled today that Pulitzer Prize-winning reporter David Ashenfelter does not have to reveal confidential sources for a story he wrote about a failed terrorism prosecution:

Detroit Free Press reporter David Ashenfelter successfully invoked the Fifth Amendment right against self-incrimination at a deposition today in which former assistant U.S. attorney Richard Convertino sought the identities of Ashenfelter’s confidential government sources to boost his Privacy Act lawsuit against the government.

It is unusual for a reporter to invoke the Fifth Amendment when fighting a federal court subpoena, yet U.S. District Judge Robert Cleland correctly ruled that Ashenfelter had a right to constitutional protection.

“While we would have obviously preferred that the judge declare that David Ashenfelter had a First Amendment-based right to protect his sources, we’ll take this victory,” said Reporters Committee Executive Director Lucy A. Dalglish.

The Court’s ruling sends a powerful message about the importance of protecting the identities of confidential sources used to report about matters of public concern. It also demonstrates the need for a robust statutory privilege, called a “shield law,” to protect reporters and their sources in such circumstances.

“David Ashenfelter’s coverage of what is inarguably the most controversial federal terrorism trial is exactly the kind of watchdog journalism the public should encourage,” Dalglish said. “Whether the prosecutor botched a big case or, as Convertino claims, the Justice Department retaliated against him for criticizing their commitment to such prosecutions, the government’s fight against terrorism is of utmost public interest. Because he was able to rely on confidential sources, he informed the public about the way in which the government was handling terrorism cases.”

In 2004, Ashenfelter used confidential sources in the government to report on an investigation involving former assistant U.S. attorney Richard Convertino, who prosecuted the nation’s first terrorism trial after the Sept. 11, 2001 attacks. Convertino won convictions for three of the defendants but the case unraveled when it was later announced that certain evidence was not disclosed. The government alleged that Convertino had violated federal rules by failing to turn over the potentially exculpatory evidence to the defense. Convertino responded that Justice was retaliating against him because he had been called to testify before Congress about the government’s anti-terrorism tactics, and had said that Justice was not giving prosecutors enough support.

When Ashenfelter reported that the government was investigating Convertino, the prosecutor sued the Justice Department under the Privacy Act for leaking the information. Convertino was later tried for the alleged misconduct and found not guilty.

Judges have ruled that Privacy Act plaintiffs may only recover if they can identify the specific government employee or official who disclosed the private information to a person not authorized to receive it.

When other attempts to identify the leakers failed, he subpoenaed Ashenfelter in 2006 for his confidential sources. Ashenfelter has been fighting to protect the identities of his sources ever since. He first argued that a First Amendment reporter’s privilege protected them. When that failed, he argued that because he could face criminal prosecution himself for revealing the source of the leak, the Fifth Amendment right against self incrimination protected him.

Ashenfelter is a member of the reporting team that won the Pulitzer Prize on Monday for its coverage of the text-message scandal that resulted last year in Detroit Mayor Kwame Kilpatrick’s ouster from office and subsequent criminal conviction. He also shared a Pulitzer Prize with a colleague at the Detroit News in 1982 for Public Service for exposing how the Navy covered up peacetime deaths of sailors.

Ashenfelter’s subpoena fight illustrates the need for a federal shield law to protect a reporter’s ability to use confidential sources in most cases, and inform the public about government wrongdoing. Without any uniform protection among federal courts, whistleblowers are less likely to speak to the press because they fear repercussion. The federal shield bills that have been proposed in the House and the Senate will provide a qualified reporter’s privilege that will protect reporters in Ashenfelter’s situation from having to rely on possibly unreliable arguments to protect their sources. This will in turn encourage whistleblowers to continue speaking out when they witness government misconduct.

Thirty-six states and the District of Columbia already have shield laws that provide this type of protection in state courts. The enactment of a federal shield law will expand this protection and help foster the type of watchdog journalism that is vital to a thriving democracy.

More background information on the case can be found at these two pages:

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.