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