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Patrick Fitzgerald: Reporters Must Obey When Ordered to Reveal Sources #ABAChicago

Posted Aug 1, 2009 5:32 PM CDT
By James Podgers

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Fitzgerald on Shield Law panel. Photo by REP3

Journalists should not put themselves above the law in their efforts to protect sources and confidential information, said Patrick Fitzgerald, the U.S. attorney for the Northern District of Illinois, today at a program during the ABA Annual Meeting in Chicago.

Prosecutors and reporters share an interest in gathering information that can help expose corruption and uncover wrongdoing by government officials and those who wield power, Fitzgerald said, but those interests do not always match.

"No one is against the right to know," said Fitzgerald at the program sponsored by the Section of Individual Rights and Responsibilities, "but we both have strong views about the best way to get to the truth in a particular case." He emphasized that his comments were not intended to reflect policy positions of the Obama administration.

Fitzgerald headed up a special investigation by the Justice Department into alleged actions by high-ranking administration officials during George W. Bush's presidency that revealed the identity of CIA agent Valerie Plame, the wife of a former U.S. ambassador critical of the war in Iraq. Journalist Judith Miller spent more than two months in jail until she finally agreed to share information with investigators.

Fitzgerald maintained that the number of subpoenas issued by federal prosecutors to journalists "is a trifle compared to the confidential information reported per day in the nation’s newspapers. [Subpoenas] are a last resort.”

But once a judge rules that the interest of justice requires that information be revealed, and the decision is upheld by a court of appeals, journalists must comply, Fitzgerald argued. "I don’t see how reporters can be different from the president of the United States or any other citizen and refuse to comply," he said. "Once a court rules, we have to follow that."

Such was the case in the Plame investigation, Fitzgerald said. "No one's goal was to put her in jail," he said. "Our goal was to get information. The reason Judith Miller went to jail is that she defied a court order."

In response to concerns about the ability of journalists to protect sources, 36 states and the District of Columbia have passed shield laws of various types, while 13 more recognize the right to protect sources through case law, said Guylyn Cummins, a partner at Sheppard Mullin Richter & Hampton in San Diego. Only Wyoming does not give journalists some type of shield protection.

On the federal level, the Free Flow of Information Act has passed the House of Representatives, and a similar bill is moving through the Senate. President Barack Obama has expressed support for the legislation. But Cummins said the legislation is unlikely to give journalists any kind of absolute right to protect sources. But at least it will provide more uniform guidelines for courts to decide whether journalists should be ordered to reveal sources, she said.

After the program, Fitzgerald declined to comment on statements made Friday by retired federal judge Abner J. Mikva that the publicity stemming from news conferences Fitzgerald held in conjunction with the indictment and arrest of deposed Illinois Gov. Rod Blagojevich may have tainted the local jury pool for his upcoming trial. Fitzgerald said he couldn't comment on a pending case, and added, "Besides, I’m leaving on vacation."

Related coverage of the panel:

Associated Press: "Judge: Reporters need protection for sources"

National Law Journal: "Fitzgerald and Libby judge talk about shielding reporters"

Media and Communications Law Society: "ABA Chicago: Evolution of Reporter’s Privilege and Shield Laws"

More on the Annual Meeting '09 here:

Why is #ABAChicago in our Annual Meeting headlines? Check out our hashtags post: "ABA Annual Meeting 2009 on Twitter"

ABA Journal's Annual Meeting coverage at this link.

Flickr Slideshow: ABA Journal snapshots from Annual Meeting.

ABA Annual Meeting site.

Interactive updates on the Annual Meeting from ABA Media Relations at ABANow.org.

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