Hot Type, for the week of September 12, 2003 -- continued 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. Send tips, tirades, and comments to hottype@chicagoreader.com Copyright © 2003 Chicago Reader, Inc. All rights reserved.