Reporter's Privilege in Peril
The Reader's First Amendment attorney, David Andich, won a battle recently in a big and very serious war: the one fought by journalists to protect the work they do from prosecutors, litigants, and the courts. The war is being lost, however, and Andich thinks journalists are fighting it badly. What Reader editors have taken to calling the "Andich doctrine" was minted after this newspaper was drawn into Hobley v. Burge et. al., a complicated civil suit that involves the city of Chicago, former police commander Jon Burge and other police officers, and a former prisoner seeking compensation from them. Madison Hobley always denied setting the 1987 fire that killed seven people, including his own wife and infant son. Hobley claimed police tried to torture a confession out of him and, when that tactic failed, doctored the evidence that led to his conviction and death sentence. But he survived to be pardoned by former governor George Ryan in 2002.
In 1991 the Reader's John Conroy, who's been focusing on police torture since 1989, visited Hobley in the state penitentiary in Pontiac. In 2000 he published a cover story that examined that dubious evidence. When Hobley filed his suit last year, his lawyers added Conroy's name to a long list of people they might conceivably call on to testify. His appearance on that list gave defense attorneys license to subpoena him, and they asked for "any and all documents" regarding Hobley and the fire. It was the sort of incursion that journalists have been resisting for decades, and Andich buckled on his armor to fight once again.
A year earlier the job would have been much easier, and it's likely that victory would have been more complete. But in August 2003 the legal freedoms that journalists enjoy suddenly shrank--around here anyway. Seizing an opportunity that Andich believes he should never have been given, Richard Posner, a judge in the Seventh Circuit Court of Appeals, which covers Illinois, Indiana, and Wisconsin, dismantled the legal concept of reporter's privilege. Like anyone else hauled into federal court, said Posner, reporters are obliged to cooperate.
Before McKevitt v. Pallasch, the case Posner weighed in on, "I would have had two additional arguments," says Andich. And those would have been arguments that reporters have long considered fundamental--that Conroy's documents were protected by a federal common law privilege and by a federal First Amendment privilege. McKevitt arguably overrules that entire body of law.
"When the information in
the reporter's possession does not come from a confidential source," Posner wrote, "it is
difficult to see what possible bearing the First Amendment could have on the question of compelled disclosure." In McKevitt, confidentiality was not an issue. As for common law privilege: "The cases that extend the privilege to non-confidential sources express concern with harassment, burden, using the press as an investigative arm of government, and so forth," Posner wrote. "Since these considerations were rejected by Branzburg even in the context of a confidential source, these courts may be skating on thin ice."
Branzburg v. Hayes was the 1972 case that lower courts relied on to conclude that a privilege existed. It perched journalists on the thinnest ice imaginable, but time and custom thickened it. Or so journalists thought until Posner cracked it.
In federal magistrate Geraldine Soat Brown, Andich faced a judge he sensed would listen with an open mind. She whittled down the subpoena until nothing was at issue but "recorded statements" from Hobley to Conroy, which turned out to be three letters Hobley had written Conroy and Conroy's notes on his visit with Hobley at Pontiac. But a legal rationale for withholding those wasn't easy to see. Brown warned Andich, "I can't overturn McKevitt. I am bound by it. I have an obligation to follow the direct dictate of the Seventh Circuit."
If McKevitt couldn't be overturned maybe it could be circumvented. Andich offered Brown another way of looking at the matter. "Conroy's notes constitute his 'journalistic work product,'" he argued in a brief. "He wrote them, and his notes are his creation. His notes are just as critical, personal, and in need of protection as attorneys would maintain about attorneys' 'work product.'" Andich was inviting Brown to identify Conroy's profession with her own.
Brown accepted the argument. She told Conroy to turn over the letters from Hobley, on grounds that they--like tapes under dispute in McKevitt--consisted of "Hobley's own statements," made at a time he was seeking publicity, and could conceivably be useful to the defense. But the notes? Conroy had written them, not Hobley; "Conroy would almost certainly have to be deposed to interpret them...multiplying the burden on Conroy." Turning them over "would disclose Conroy's confidential research." Giving the defendants only the letters "meets their needs without the unwarranted intrusion into Conroy's work."
Brown had no trouble reconciling this decision with McKevitt. Hadn't Posner written that a subpoena directed to the media must be evaluated like any other subpoena--was it "reasonable in the circumstances"?
Attorneys for Burge and the other officers chose not to appeal Brown's decision. So the Andich doctrine--that reporters' work product deserves protection--stands.
In what journalists imagine to be a perfect world they'd never be made to show anybody anything anywhere and nobody would ever think they should. In the real world, Andich, Conroy, and the Reader settled for less than a full loaf. They might have continued the fight in order to protect the letters, but there was nothing much in the letters, nothing to justify an appeal that would put at risk what they'd already won. In the real world, Posner's assault on Branzburg was probably inevitable, given the increasing conservatism of the federal bench and the jerry-rigging that had to go on to install Branzburg as a bulwark of a reporter's privilege in the first place.
Branzburg, you see, was originally a defeat. By a five-four majority, the Supreme Court ruled against three journalists who'd resisted grand jury summonses in criminal cases. But Justice Lewis Powell, though voting with the majority, was uneasy enough to write a concurring opinion asserting reporters' right to protection "where legitimate First Amendment interests require" it. Powell plus the minority came to be construed as a majority favoring some sort of privilege in the federal courts. But what Posner noticed were the limits Branzburg imposed. After all, it had rejected the three journalists' positions even though they wanted to protect confidential sources.
By Posner's lights, Branzburg offered the journalists in McKevitt no protection at all. Accused Real IRA leader Michael McKevitt was on trial in Dublin for terrorism. The star witness against him was an informant, David Rupert, who was involved in a book project with Sun-Times reporters Abdon Pallasch and Robert Herguth. In an obvious fishing expedition, McKevitt's lawyers wanted tapes the reporters had made with Rupert. Rupert told McKevitt's lawyers he had no objection. So on the one hand, as Posner saw it, was a man on trial for grave criminal acts, and on the other hand--a book deal.
Pallasch, one of the best reporters the Sun-Times has, told me a year ago he was ready to go to jail to protect those tapes. Andich believes that one of the duties of a good media lawyer is to save his clients from the unintended consequences of their own idealism. He doesn't fault the Sun-Times reporters' attorneys for fighting for the tapes in U.S. district court, though given the facts it was an all but hopeless battle. But when they lost, he believes, they should have called it a day. Instead, they appealed to the Seventh Circuit and asked for a stay of the order to surrender the tapes. The stay was denied in a matter of minutes. The reporters turned over the tapes and figured that would be the end of it. But it wasn't. Posner could still write an opinion if he wanted to. It was his opening and he took it.
"I'm certain the paper and the reporters were terribly unhappy and didn't want to produce the tapes," says Andich. "But most people believe the Seventh Circuit is a relatively conservative court. And to overturn a district court decision that was arguably well written and reasoned was, I think, an extremely difficult task. They certainly didn't know they were going to draw Justice Posner and that he would write the opinion he wrote, but these are all things you have to take into account as a lawyer."
And now there's the Valerie Plame case. Special prosecutor Patrick Fitzgerald's inscrutable strategy for finding out which administration officials identified her to columnist Robert Novak as a CIA agent has had him summoning other journalists before a grand jury--journalists who it seems might have heard from the same sources, though it was Novak who published Plame's secret identity. Some have testified; others, such as the New York Times's Judith Miller, have declared they'd rather let the jailhouse door slam behind them for contempt of court than say a word.
Andich imagines the legal battle to quash these subpoenas reaching the Supreme Court. And he worries about that.
He doesn't know the facts behind Judith Miller's stand--he doesn't know what she knows and how she knows it. But he knows that because Fitzgerald is investigating a criminal case, not even Branzburg gives Miller a legal leg to stand on. "Before I launch my quest to quash, I'd look very carefully," Andich says, "to see if there's some compromise I could reach that would do the best I could to honor the commitment I made to the source or sources and salvage whatever I could." And if he lost in district court, as Miller has, "I'd make a serious reevaluation--because I think it is not in Judith Miller's interest or the New York Times's interest to take the case to the Supreme Court. I think they will lose there."
And the loss, he thinks, could be disastrous. The court could eradicate Branzburg, not only extending the reach of McKevitt from the Seventh Circuit across the nation but going beyond it, wiping out whatever wiggle room Posner left for such notions as the Andich doctrine in civil cases. "If you take Branzburg v. Hayes, there's a certain ambiguity to a four-one-four decision that allows everybody to argue some slant in their favor. If media lawyers believe things can't get worse, I fall out. You can have a decision rendered in the New York Times-Judith Miller situation, if it goes to the Supreme Court, that may resolve any ambiguity whatsoever and make a definitive, unqualified, unambiguous statement that says there is no First Amendment protection and there is no common law privilege. How does that help the media? It would be a terrible loss. I believe media lawyers have a substantial obligation today to be more selective in how you go about your business, in choosing whether you're going to file a motion to quash and take it through the appellate court process and takethe risk you can make the law worse than it is.
"Right now there is a certain nucleus of cases we can put together to make formidable and persuasive arguments to quash third-party subpoenas, particularly on the civil side. The burden is much more difficult on the criminal side, but even in subpoenas issued in criminal cases there are gradations. You could force a situation with Judith Miller where the Supreme Court decides that case in a way that makes it extremely difficult even on the civil side--as Justice Posner did in McKevitt. Then it's lights out. The ball game's over."
Andich continues, "I think some media attorneys would disagree with me, because they believe it is their obligation, and the obligation of their clients, to do battle over any third-party subpoena. They think it is absolutely their job--that is how they define it--to not allow voluntarily any client, any reporter, any writer, any broadcast journalist to produce any information relating to sources. I think that is the wrong approach to our practice. And I think that philosophy will potentially bring more losses and more bad law contrary to the media than I think it will bring favorable law."
Still Not Buying It, Steve
On Sunday, November 21, the Sun-Times published a misbegotten editorial that I excoriated in my next column. That column had the same effect on Steve Huntley, editor of the Sun-Times's editorial page, as his editorial had had on me. His indignant reply appears in our Letters section this week.
Observing that the editorial was both brief and tucked away at the bottom of the editorial page, I'd wondered, "Was the paper just going through the motions of taking [Robert] Novak's side? Could be. It was a terrible editorial that deserved to be hidden." Huntley doesn't defend the editorial, but he does defend his paper's commitment to Novak, and he cites three earlier editorials championing him.
The earliest of these ran 14 months ago and asserted that Novak's column earlier in 2003 outing Valerie Plame had "shaken the government." As I wrote at the time, the Sun-Times seemed to be missing the point: the goal of Novak's government sources, so far as one could be surmised, hadn't been to shake the government. It had been to shake Plame's husband, Joseph Wilson, who had angered the Bush administration. And in Novak these sources found a helping hand.
The second editorial, from last July, is essentially a news story describing the cloud that Wilson and Plame had since come under, the one Huntley now rails at me for ignoring. The third editorial, from August--which I hadn't read until Huntley pointed it out--makes the provocative point that because it's now known Wilson played "fast and loose with the truth . . . the whole basis for [Patrick] Fitzgerald's investigation has collapsed." Why? "There was no motive to expose Plame as a covert agent." Her own "political machinations" are what revealed her identity.
Huntley wonders why this background doesn't interest me. Actually it does, but he and I part company on the question of what difference it should make to Fitzgerald. So far as I know, the law forbidding government officials to reveal the identity of undercover CIA agents makes no exception for agents whose spouses are later caught in falsehoods, or for government officials whose vindictive anger is righteous rather than simply malicious. Meanwhile, I'm puzzled by what the Sun-Times seems to know that no one else knows about the motives, or lack of motives, of Novak's sources. Perhaps Huntley's the one Fitzgerald should talk to.
Huntley proudly asserts the importance to Novak and to the Sun-Times of their relationship, which he understands far better than I. But I will point out that, TV aside, Novak's "journalistic profile" is hardly limited to the Sun-Times. To the Sun-Times add every other newspaper he appears in, particularly the Washington Post, which is where that city's movers and shakers read his column on Valerie Plame. But shouldn't Huntley and I be debating the November 21 editorial itself? The editorial chastised the media for not doing a good enough job of "standing up for their own." By "their own," of course, the paper meant Novak, "who has not been supported enough by the journalist community in his fight over confidential sources." The editorial went on to say, ludicrously, "This is a fight for the soul of America. If disgruntled government workers cannot pass along evidence of the incompetencies and crimes that the public sector is riddled with, if a reporter cannot accept such information without committing himself to perhaps turning the source over to prosecution down the line, then the entire system collapses."
That's a nightmarish prospect, but if Novak is fighting to prevent it, his fight is a well-kept secret. Judith Miller, who didn't write a word about Plame, already has one foot inside the jailhouse door, yet it's Novak the Sun-Times wants journalists to rally around. He hasn't even revealed whether he's been subpoenaed. Inside the Washington Post, where a couple of writers were subpoenaed in the aftermath of Novak's Plame column, there's been a debate over whether to throw him off the editorial page.
My point is to convey that the legal issues at play in the Plame investigation are serious, complicated, and perilous. They demand serious commentary, not the kind of slapdash, shorthand treatment the Sun-Times's November 21 editorial gave them. I hope I've demonstrated that the McKevitt case, far from being something I've had to "drag" into the discussion, is central to it. I concede that to blame Posner's ruling on the Sun-Times (which I did) was way out of line. The paper's fault was passive. "The paper encouraged us not to turn over the tapes," Pallasch told me last year. "We were soliciting editors' advice on everything."
In defense of his profession, Pallasch was willing to fall on a grenade. But McKevitt wasn't a grenade. It was a booby trap.
Art accompanying story in printed newspaper (not available in this archive): illustration/Archer Prewitt.