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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. |
