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Detroit Free Press — Congress should step up for press rights

Detroit Free Press
April 26, 2009

BY U.S. SEN. ARLEN SPECTER

The time is ripe for Congress to enact a federal media shield law, not only for the protection of reporters, but for the public who will be denied the benefits of a free press if sources become less w

Detroit Free Press
April 26, 2009

BY U.S. SEN. ARLEN SPECTER

The time is ripe for Congress to enact a federal media shield law, not only for the protection of reporters, but for the public who will be denied the benefits of a free press if sources become less willing to speak and journalists afraid to publish.

Detroit Free Press reporter David Ashenfelter is the latest in a line of reporters who have been threatened with prison or fines for refusing to reveal a confidential source.

Last Thursday, the Court of Appeals for the 6th Circuit declined to stop the deposition of Ashenfelter, a Pulitzer Prize winning reporter who had been ordered by a federal judge to testify about the source for his 2004 article about a Detroit federal prosecutor who had won a conviction of three defendants on terrorism related charges. The federal judge on Tuesday, however, accepted Ashenfelter's argument that naming his sources would violate his Fifth Amendment right to avoid self-incrimination.

At a court hearing earlier this year, Justice Department lawyers said they could not guarantee Ashenfelter would not be prosecuted. Ashenfelter's article quoted anonymous sources alleging that the prosecutor had withheld evidence from the defense and was the subject of an internal probe by the Department of Justice. The verdict against all three defendants was overturned based on evidence mishandling and prosecutorial misconduct.

As a result of the article, the federal prosecutor resigned from the Department of Justice, filed a lawsuit claiming that information from his personnel file had been leaked unlawfully, and asked a federal judge to fine Ashenfelter $500 to $5,000 per day until he reveals his source, with no reimbursement from the Free Press. This is the same penalty faced last year by USA Today reporter Toni Locy, who refused to reveal her confidential source for a story about the department's handling of a criminal investigation.

While Michigan state law protects a reporter from having to reveal confidential sources, the federal judge has refused to apply that law because Ashenfelter's deposition is sought in a lawsuit filed in federal court, not state court.

In June 2008, 42 state attorneys general wrote a letter urging Congress to pass a federal media shield bill, noting that a reporter's privilege is recognized by the laws of 49 states and the District of Columbia.

I agree that the absence of a uniform and clear federal law -- one that doesn't vary from judge to judge -- frustrates the purposes of the state-recognized privileges. The attorneys general further stated that they have had significant experience with the operation of state-law privileges and have found no undue impairment of law enforcement or the truth-seeking function of the courts. Yet the federal media shield legislation that I have introduced with Sens. Dick Lugar, D-Ind., Chuck Schumer, D-N.Y., and Lindsey Graham, R-S.C., continues to face Senate opposition.

Ashenfelter was on the team that won the Pulitzer Prize on Monday for his reporting on the text message scandal involving the former mayor of Detroit. He was coauthor of a Pulitzer Prize-winning series on the deaths of U.S. Navy seamen, and he is a multiple winner of the State Bar of Michigan's Award for the Advancement of Justice.

His case is just one more reminder of the recent and disturbing trend of hauling journalists into court. Toni Locy's case eventually was resolved, former New York Times reporter Judith Miller was released after 85 days in prison when her source released her from her promise of confidentiality, and Ashenfelter's case may be resolved.

There can be no doubt that the Ashenfelter case and others have a chilling effect that is antithetical to what is necessary in a free and open society.

Congress must act to protect the public's right to know about government fraud, and abuse, and other matters of local, national and international interest.

As Thomas Jefferson said: “If it were left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Sen. Arlen Specter, R-Pa., is the ranking member of the Senate Judiciary Committee.

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