A First Amendment Showdown

A cross-examination in Ireland has led to a pronouncement in Chicago that denies a right American journalists hold dear. To the horror of First Amendment champions, federal appellate judge Richard Posner stepped in when he didn’t have to and gave his dismissive view of reporter’s privilege the force of law.

In the dock last June 26 in Dublin’s Special Criminal Court was accused terrorist Mickey McKevitt, leader of the Real IRA, a Provisional IRA splinter group that opposes the peace process in Northern Ireland. The star witness against him was David Rupert, an Indiana trucker and Real IRA benefactor who turned out to be an informant for the FBI and British security.

“We have been made aware, and only very recently in the last week,” McKevitt’s attorney said to Rupert, “that you have entered into a contract with one or two journalists in which they will ghost a book for you. Is that correct?”

Rupert described the deal. Under the contract they’d all signed, the journalists would produce a book proposal shortly after McKevitt’s trial ended, submit it to the FBI for vetting, and then offer it to a publisher. He didn’t name them just then, but Rupert was working with Abdon Pallasch and Robert Herguth, of the Chicago Sun-Times. Herguth had replaced the book project’s original reporter, the Chicago Tribune’s Flynn McRoberts.

“Did they take recordings and notes?” asked McKevitt’s attorney.

“Yes, they did,” said Rupert.

“I take it you would have no objection to us having a view of those matters which you related to your journalist friends,” said the attorney.

“Absolutely not,” Rupert answered.

“And so that can be communicated to any American court which is hearing the application at this time?”

“Yes it can,” said Rupert.

In fact McKevitt’s attorneys were already in federal court in Chicago trying to get their hands on the tapes.

Reporters assert that the right to keep confidential the tapes, notes, photos, and everything else they acquire in their news gathering–not to mention their sources–is necessary to protect the flow of information to the public. This right is commonly known as reporter’s privilege, and many states have written it into law. Decades ago former governor Richard Ogilvie hailed the Illinois model. It “assures a better informed public,” he said, “for it allows reporters to seek the truth wherever it is to be found, without the fear that their sources will be cut off by unnecessary disclosure.”

But the Illinois law didn’t create an absolute privilege. And now Posner has asserted that federal law offers no privilege at all. Nothing has protected reporters in federal courts but a stack of dubious appellate court opinions based precariously on a 1972 Supreme Court decision that the journalists involved actually lost.

When McKevitt’s attorneys subpoenaed the Rupert tapes, they were on a fishing expedition, pure and simple. They had no idea what the tapes might contain but argued that time was short and they had a right to find out. They persuaded federal judge Ronald Guzman, who weighed the reporters’ rights against McKevitt’s and on July 2 ordered the reporters to surrender the tapes the next morning.

Instead, the reporters’ attorneys filed a motion for a stay of Guzman’s order. An hour and a half later–no time at all–an unnamed three-judge panel of the Seventh Circuit Appellate Court rejected the motion.

“We were all set to go to jail,” says Pallasch. “That’s just what you do.”

But the attorneys talked them out of becoming martyrs to reporter’s privilege. Pallasch explains, “Our lawyers say, turn over the tapes or the Seventh Circuit will issue a full-fledged opinion that will be used to hammer other journalists in our situation.” To avoid a fate worse than jail, the reporters returned to the almost deserted federal building the next morning, July 4, and turned over the tapes to the FBI.

In hindsight, asking for the stay might have been a big mistake. Better perhaps to have obeyed Guzman’s order and kept the matter out of the Seventh Circuit–a court historically unfriendly to the press in constitutional cases. Better perhaps to have defied the order and let the reporters rot in jail while the order was formally appealed–a process that would have guaranteed that the Seventh Circuit would weigh in but also that the constitutional issues would be fully argued.

Getting the tapes did McKevitt no good–he was convicted and sentenced to 20 years in prison. And giving up the tapes failed to head off the Seventh Circuit. One of the judges on the anonymous three-judge panel turned out to be Posner, a philosopher king of a jurist. Rather than let the denial of a stay speak for itself, on August 8 he produced a full-blown opinion explaining it. That opinion eviscerates reporter’s privilege. It has the force of law in the Seventh Circuit and lectures the other circuits on what the law should be. No wonder that when the reporters’ attorneys petitioned the entire Seventh Circuit to reconsider Posner’s opinion, many of the most important news organizations in America lined up alongside them.

“There is no conceivable interest in confidentiality in the present case,” Posner declared. Absolutely wrong, replies the amicus brief submitted last week by the New York Times, the Washington Post, the Chicago Tribune, Time, Newsweek, NBC, CBS, ABC, NPR, Gannett, Hearst, and several other institutions.

“Not only is the source (Rupert) known,” Posner went on, “but he has indicated that he does not object to the disclosure of the tapes of his interviews to McKevitt.” Clearly impressed by this point, Posner made it twice, the second time more dramatically: “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….Rupert wants the information disclosed; it is the reporters, paradoxically, who want it secreted.”

Posner thought he knew why. “The reason they want it secreted is that the biography of him that they are planning to write will be less marketable the more information in it that has already been made public.” The dispute, as he saw it, was over competing claims to intellectual property, and the First Amendment had nothing to do with it.

“Legal protection for the gathering of facts,” Posner reasoned, “is available only when unauthorized copying of the facts gathered is likely to deter the plaintiff, or others similarly situated, from gathering and disseminating those facts.” In the case at hand, no one pretended that the biography of Rupert would have to be abandoned if the taped interviews with him became public.

So that was that. No constitutional principle was at stake, merely competing claims to the same facts. “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 wrote. But since other courts had persisted in thinking journalists were somehow different, he considered the roots of this belief.

The 1972 opinion in Branzburg v. Hayes addressed three different cases appealed to the Supreme Court–a newspaper reporter who’d investigated marijuana use in Kentucky and a TV newsman in Rhode Island and a New York Times reporter, both of whom had been covering the Black Panthers. All three resisted grand jury summonses. Justice Byron White, writing for a five-four majority, found that the First Amendment does not exempt the media “from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function.”

In dissent, Potter Stewart warned that the court was inviting prosecutors “to annex the journalistic profession as an investigative arm of government.” Lewis Powell, who’d voted with the majority, wrote a short opinion to reassure Stewart: he emphasized the “limited nature” of White’s opinion and asserted that “where legitimate First Amendment interests require protection” journalists would have it. Powell and the four justices in the minority equaled a majority supporting the idea of some sort of reporter’s privilege in federal cases. That at least is the generous way in which federal appellate courts, by and large, have chosen to interpret Branzburg v. Hayes ever since.

Posner isn’t sure why. “A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege, though they do not agree on its scope,” he wrote in his opinion. But in his view Branzburg wasn’t establishing a privilege but limiting it. A source like Rupert who didn’t ask for confidentiality was clearly beyond the limit.

“The cases that extend the privilege to nonconfidential sources express concern with harassment, burden, using the press as an investigative arm of government, and so forth,” wrote Posner, mulling past opinions in other courts. “Since these considerations were rejected by Branzburg even in the context of a confidential source, these courts may be skating on thin ice.”

Posner was smashing that ice with a pickax. In the Seventh Circuit, a source taking his life in his hands to whisper into a reporter’s ear shouldn’t count on reporter’s privilege to conceal him. A source such as Rupert shouldn’t give privilege a passing thought. And Posner made one other point: Illinois’ state law creating a reporter’s privilege “has no application to this case.”

Within a day or two Posner’s opinion was read by Victor Kovner, a prominent First Amendment lawyer in New York City. “To say it was stunning is an understatement,” he tells me. After establishing that the Chicago lawyers representing the reporters intended to ask the full Seventh Circuit to review Posner’s opinion, Kovner rounded up sponsors of an amicus brief and lawyers to help him write it. The 23-page brief was FedExed to Chicago on August 28.

“I disagreed with Guzman’s decision,” says Kovner, “but it wouldn’t have led to an amicus. Guzman applied a balancing test and felt the burden had been overcome.” Posner hadn’t conceded the press any special rights to balance. His opinion, says the amicus brief, “commits this Circuit to a position which conflicts with decisions from ten out of the eleven Circuits that have recognized the existence of some form of the reporter’s privilege.”

The brief says Posner got reporter’s privilege backward: “Federal courts have expressly held that the privilege belongs to the reporter or publisher alone, and may not be waived by the source.” That’s because the source is only incidentally its beneficiary–ultimately the privilege exists for the public, which is better informed when the press is unencumbered. The fact that Rupert, when asked if he objected to having the tapes turned over, answered, “Absolutely not,” didn’t change Pallasch, Herguth, and McRoberts’s legal position in the slightest.

The brief argues, “If the privilege could be breached any time a source is placed under pressure by an adversary, such as the cross-examination at trial here, and asked to waive the privilege…the journalist’s promise of confidentiality to the source would be illusory.”

Put yourself in Rupert’s shoes. You’ll disappear into a witness protection program as soon as the trial ends because you’re dead if the Real IRA ever finds you. It’s a Real IRA attorney interrogating you now, and you’re bending over backward to be cool. “Absolutely not,” you say, but do you mean it?

Pallasch thinks Rupert didn’t. “If you say, ‘Yes, I object,’ the follow-up question will be ‘Oh! What do you have to hide?'” says Pallasch. “I think given his druthers he wouldn’t have wanted those tapes to come out. But he didn’t have much choice but to acquiesce.”

Posner took Rupert’s response at face value and ran with it. He ran so far that if his opinion stands, the amicus brief warns, “it could well sweep within its grasp, not just audiotapes made of the subject of a book pursuant to a collaboration agreement, but all non-confidential, unpublished newsgathering material, be it a broadcaster’s outtakes, photographs, reporter’s notes of interviews, documents obtained from other sources or drafts–in short, the reporter’s entire work product….It threatens to permit this intrusion into the newsgathering process, not just for prosecutors or criminal defendants, but for civil litigants as well in litigation where the news organization is not even a party.”

But say what you will about “absolutely not,” it does have a ring of sincerity to it. And principle doesn’t gleam as bright when the journalism at issue is a book deal. (Posner applies the principles of the marketplace to the law, which might be why he’d assumed the reporters were defending their tapes in order to protect sales.) The subpoena arrived in circumstances better suited to attacking reporter’s privilege than defending it. That’s why the reporters’ lawyers wanted to avoid a Seventh Circuit opinion, and that’s why the amicus brief offers a compromise. It asks the full court to either withdraw Posner’s opinion or modify it “to recognize the existence of a qualified reporter’s privilege grounded in the First Amendment or, at a minimum, as a matter of federal common law.” As a third alternative it asks the court to limit the “sweeping reach” of Posner’s opinion to the peculiar circumstances at hand–a terrorist on trial in a foreign court, the key witness’s testimony at stake, a subpoena limited to tapes in which both that witness and the reporters share a financial interest.

Thanks largely to Posner, the Seventh Circuit is notoriously unwelcoming of amicus briefs, and Kovner couldn’t be sure the Seventh Circuit would accept his. Just last month Posner, considering an amicus brief submitted in another case, warned that the circuit’s judges have little time for “extraneous reading” and therefore won’t grant “rote permission” to file amicus briefs. Often, he said, they’re an “end run around court-imposed limitations on the length of parties’ briefs.” Often they’re an attempt “to inject interest group politics into the federal appeals process.” They “drive up the cost of litigation.” Posner rejected that brief.

But Kovner’s brief made it in. Now the court’s waiting to hear from the other side, from McKevitt. Of course he’s in prison now, and his lawyers have indicated that he and they don’t give a hoot what happens next in Chicago. Even so, they have until September 12 to meddle in First Amendment jurisprudence if they want to. After that, Sidley Austin attorney Kathleen Roach, who’s representing Pallasch and McRoberts, expects to hear something from the Seventh Circuit within three weeks.

The reporters’ petition asking the full Seventh Circuit to reconsider Posner’s opinion faults it for its sweep and peremptoriness. “Without adversarial briefing or argument,” it declares, “a panel of this court has staked out a position on a significant constitutional issue that is contrary to the decisions of almost every other Court of Appeals.” Still, it’s not contrary to past decisions of the Seventh Circuit–which had never weighed in on reporter’s privilege before. It’s unusual in any circuit for all the judges to rehear an opinion, and Posner’s colleagues aren’t likely to rehear his if they think he was merely high-handed. And there’s no particularly good reason to expect them to think he was wrong.

The Guilty Party

Newspapers often take their time getting angry, but once they are–watch out. Back in the Clinton years, when it was Republicans gumming up the works, the Sun-Times and Tribune showed signs they were getting a little peeved at the way senators were playing politics with judicial nominations. “So bad has the situation become that some Americans wonder whether justice is being hindered,” the Sun-Times snapped in 1998. In 2000 the Tribune, noting the confirmation of an appellate judge who’d been nominated four years earlier, bluntly told Republicans they’d “gained a reputation as procrastinators.”

Despite these tongue lashings, the problem persisted. When the White House changed hands but Democrats controlled the Senate Judicial Committee, they could vote down George W. Bush’s nominees. Once they were back in the minority their tactics turned to filibustering.

Last week Miguel Estrada, a filibustered nominee to the U.S. Court of Appeals, withdrew his name two years after he’d been nominated, and the papers exploded. Democrats “have rewritten the Constitution,” cried the Tribune, by turning the simple majority required for confirmation into the 60 votes needed to break a filibuster. This was “fundamentally unjust treatment of a good man.” The Tribune allowed that when Clinton was president “GOP senators played games with some of his nominees. That was no less scurrilous than this year’s chicanery.” And thus the Tribune served notice that it’s perfectly willing to call Republicans scurrilous as little as three years after the fact.

The Sun-Times got even angrier, thundering that the “odorous partisan politics” of the Democrats had “subverted the Constitution.” The paper told why: Democrats “are driven by their minority status to oppose anyone President Bush nominates.” Admittedly, Republicans “were no strangers to opposing judicial appointments themselves, of course, when they were in the Senate minority, but they never pulled anything as low as this.”

Fury this fierce can only benefit from facts and figures, so I did some research. While in the minority, Senate Democrats have filibustered three nominees, one of whom, Estrada, dropped out. When they controlled the Judiciary Committee, they voted down two nominees, both of whom Bush resubmitted. Since Bush took office 146 of his nominees to the federal bench have been confirmed.

During the last six years of the Clinton administration, Republicans controlled the Judiciary Committee. In that time the Senate confirmed 248 judges and blocked 66. No wonder the papers finally lost their temper when Bush took over and an ugly situation got even better.

Art accompanying story in printed newspaper (not available in this archive): photo/Bruce Powell.