Reporter’s Privilege in Peril
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.
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.”
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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.
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 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.”
