By Justin Silverman

Unable to convince a federal judge that the First Amendment protects him from revealing anonymous sources, a Detroit Free Press reporter is asking that judge to accept a Fifth Amendment pleading, hoping it will have the same effect.

Arguing that the First Amendment protects a journalist from having to disclose his or her sources is not novel. Such sentiment is behind two federal shield bills currently in Congress; in fact, the House on Wednesday passed its version of the bill — albeit a more limited one than in the Senate. (See the MCLS’s “Legislation Watch” on this blog’s sidebar.) But until such bills become law, journalists are forced to use whatever means they can to protect themselves against subpoenas. Receiving more consideration in this context is the Fifth Amendment and the right not to incriminate oneself.

How does this apply to a journalist and anonymous sources? Consider David Ashenfelter’s case. The Free Press reporter wrote a 2004 article on a U.S. Department of Justice investigation into the alleged misconduct of a federal prosecutor during a terrorism trial. The prosecutor, Richard Convertino, is suing the Department of Justice under the Privacy Act for leaking information about the investigation and the disclosure of Ashenfelter’s sources would help his case. But, according to the Reporters Committee for Freedom of the Press, Convertino is alleging that Ashenfelter, in refusing to give up his sources, is aiding the crime committed by those who illegally leaked the information in the first place. That’s where the Fifth Amendment comes into play. By invoking this right, Ashenfelter can avoid disclosing those sources because by doing so he may incriminate himself.

Though it’s not yet clear if such a tactic will work for Ashenfelter, other journalists have found mixed results. Chicago Sun-Times reporter Jim DeRogatis invoked the Fifth in 2002 during singer R. Kelly’s child pornography trial. He received a tape allegedly depicting Kelly having sex with an underage girl, handed it over to authorities and broke the story. The judge ruled that a reporter’s privilege didn’t apply but that DeRogatis could plead the Fifth and not testify to his sources. Washington Times reporter Bill Gertz invoked his Fifth Amendment right against self-incrimination last July in effort to keep his sources concealed. According to the RCFP, the judge in that case ultimately sidestepped the Fifth Amendment issue but found the public interest in preserving a free press outweighed the disclosure of Gertz’s sources.

Generally, the privilege is available to a witness whenever an answer to a question could support a conviction of that witness for a crime. The court must determine whether, in light of all circumstances, answering the question would present a reasonable danger of incrimination. That is what the judge must determine next month if Ashenfelter again pleads the Fifth. The fact that Convertino is accusing him of aiding in a crime will likely help Ashenfelter’s case, but ultimately the judge needs to decide if there is a reasonable threat.

So, if efforts to pass a federal shield law are stymied, or if such a law is passed but still leaves independent or part-time journalists exposed, will the Fifth become the new First? 

It’s not certain, but Ashenfelter’s case may help determine the answer. In the meantime, prosecutors should be offering immunity to uncooperative witnesses so they are not in jeopardy of incriminating themselves. And subpoenaed journalists should cross their fingers for a shield law recognizing their rights under the First Amendment, so they don’t have to invoke their rights under the Fifth.