Several years ago, when journalists by the dozen were being threatened with jail for refusing to name their confidential sources, I wrote an article urging them to invoke the fifth amendment's protection against self-incrimination -- to use the fifth amendment to reinforce the first amendment-based "journalist's privilege."
This idea hasn't gotten much traction, until now: a federal judge in Michigan, in a civil suit against the Justice Department, ruled last month that a journalist could assert his fifth amendment right against self-incrimination in refusing to reveal a confidential source.
The reporter, David Ashenfelter, while working for the Detroit Free Press, wrote an article that was critical of a former federal prosecutor, Richard Convertino. The article, which relied on an unnamed source, reported that Convertino was under investigation by the Justice Department for his handling of a bungled terrorism trial.
Convertino sued the Justice Department, alleging that the leak by a Department insider violated his rights under federal privacy law. As part of the lawsuit he subpoenaed Ashenfelter to testify about his source. U.S. District Judge Robert Cleland, declining to enforce the subpoena, ruled in November that Ashenfelter could not be compelled to reveal his government sources because doing so would subject him to a risk of criminal prosecution.
The fifth amendment defense is not a substitute for a strong federal shield law or evidentiary privilege. It may not be available, for example, to journalists caught up in a leak investigation or federal prosecution for leaks of classified information. Prosecutors in those cases typically will have the option of granting a journalist immunity for testimony about sources. And immunity removes the "incrimination" threat.
But the fifth amendment defense can be used in nearly any civil litigation involving leaked information in which the source, by providing the information to a journalist, may have acted illegally -- in which case the journalist could, in theory, be subject to prosecution on a conspiracy, solicitation or aiding and abetting theory. This is so regardless of whether such a prosecution could succeed. (And it almost certainly could not, but that's an issue for another column).
Some examples: A suit by a corporation against an ex-employee or business partner for allegedly leaking trade secrets to the press; a malpractice suit against healthcare providers in which a hospital is charged with disclosure of confidential medical information; an investigation of a grand juror who is alleged to have provided a journalist with a summary of a witness' testimony.
I think some journalists, faced with a subpoena, have been reluctant to assert a self-incrimination defense because of its association with mafiosi and corrupt politicians hauled before a legislative hearing. And it's true that "taking the fifth" is usually understood as an admission of guilt.
But an investigative journalist who asserts the fifth amendment is acknowledging only that he does what investigative journalists do -- persuade sources in government, corporations, political parties and other institutions to disclose newsworthy information that is in the public interest. In pleading the fifth, a journalist does not acknowledge the criminal nature of that transaction, only that a prosecutor could seek to characterize it that way.
The fifth amendment is an option to be considered whenever a journalist faces a government directive to name a confidential source. Taking the fifth in that situation is not necessarily a scarlet letter. More like a badge of honor, in my view.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the views of FAC or its Board of Directors.