Digital Media and Data Privacy Law Blog

We have covered in a number of prior posts the saga of a former federal prosecutor's efforts to compel Detroit Free Press reporter David Ashenfelter to disclose the identity of a confidential source.  This story has had a number of interesting twists and turns, and last week's development was no different -- after hearing testimony from Ashenfelter in camera federal district court judge Robert Cleland upheld Ashenfelter's invocation of the Fifth Amendment privilege against self-incrimination, which means that Ashenfelter will not have to reveal his source.

As we previously reported, Ashenfelter first objected on First Amendment grounds to the third-party subpoena he received from the former prosecutor, Richard Convertino.  However, given that the civil proceeding in which the subpoena was issued is a federal matter, Ashenfelter could not use Michigan's shield law in seeking to protect the identity of his confidential source.  He argued instead that the information sought was protected under the common-law First Amendment privilege, citing Branzburg v. Hayes.  However, the court rejected this claim, holding that the Sixth Circuit, which includes Michigan, does not recognize the common-law privilege.

Ashenfelter was therefore required to sit for a deposition conducted by the Convertino's attorney.  However, rather than answer the questions he was asked, Ashenfelter invoked the Fifth Amendment privilege against self-incrimination.  He argued he feared prosecution because Convertino's attorney had made statements suggesting that Ashenfelter himself was criminally culpable by withholding the identity of a person Convertino claimed had violated the federal Privacy Act by revealing information to Ashenfelter about Convertino.  The former prosecutor them moved to hold Ashenfelter in contempt for refusing to answer questions about his confidential source.

After some legal maneuvering, this issue finally culminated in another hearing before Judge Cleland.  Cleland heard testimony from Ashenfelter ex parte -- outside the presence of Convertino's attorney -- and concluded that Ashenfelter's invocation of the Fifth Amendment privilege was warranted.  As a result, Judge Cleland held that Ashenfelter did not have to testify, and his source's identity, at least for now, remains secret and Ashenfelter is relieved of his obligation to sit for a deposition.  Judge Cleland set a May 5 deadline for Convertino to request reconsideration of the ruling.

Judge Cleland's decision was hailed by free speech advocacy groups.  This publicity this saga has garnered has also helped build momentum for passage of a federal shield law, as we have covered previously.  If Congress passes a federal law akin to most state shield statutes, a reporter subpoenaed in a federal matter will not have to prevail on a Fifth Amendment (or First Amendment) argument in order to protect his or her source.