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United States3 April 2009

Judge denies Free Press reporter David Ashenfelter’s motion

Reporters Without Borders has voiced deep concern about the new developments in the case of Detroit Free Press reporter David Ashenfelter. Ashenfelter’s request for an immediate decision on his invocation of the Fifth Amendment to protect confidential sources has been denied by Judge Robert Cleland.

Ashenfelter is the process of battling a subpoena from former federal prosecutor Richard Convertino, who is suing the government for an alleged violation of the Privacy Act.

Last December, Judge Robert Cleland in Michigan ruled that Ashenfelter was not protected by a First Amendment reporter’s privilege. Ashenfelter then decided to invoke the Fifth Amendment right against self-incrimination.

Ashenfelter’s lawyers filed a request Monday asking the judge to make a resolve of a sealed affidavit that Ashenfelter submitted last month explaining his reasons for invoking the right to protect against self incrimination at that deposition.

A four-page ruling was issued Tuesday in which the judge explains his refusal to determine whether Ashenfelter’s use of the Fifth Amendment was justified and his refusal to certify the request for an interlocutory appeal to the U.S. Court of Appeals in Cincinnati. According to another court order, Cleland ruled that Ashenfelter is to appear at a deposition on April 21.

“To the extent Ashenfelter seeks to have this court ‘immediately’ review his submission, such request is moot, as it was reviewed within minutes of it being lodged under seal in chambers. The court views the submission as one piece of evidence to be considered should Ashenfelter choose to pose a Fifth Amendmnt challenge to questions in his upcoming deposition.” Cleland wrote.

Ashenfelter’s lawyer, Herschel P. Fink, expressed his disappointment to Reporters Without Borders is an emailed statement: “We believe that an early decision by the 6th Circuit US Court of Appeals would have been in everyone’s best interest, since the substantial and substantive issues will, in any event, be decided in the appellate courts.”

Reporters Without Borders believes that Judge Cleland’s denial of Ashenfelter’s motion reiterates the profound need for a federal shield law.

The international press freedom organization welcomes the federal shield bill passed by the U.S. House of Representatives on Tuesday night recognizing a reporter’s privilege to not reveal confidential sources.

Known as the Free Flow of Information Act of 2009, or H.R. 985, it is sponsored by Rep. Rick Boucher (D-Va), Rep. Mike Pence (R-Ind), Rep. Bob Goodlatte (R-Va), and Rep. John Conyers (D-Mi) and was passed unanimously by a voice vote under a suspension of the rules, a procedure that is typically used to pass non-controversial bills. This bill is identical to the bill that was passed in 2007 by a vote of 398 to 21.

A few voices expressed opposition, such as Rep. Lamar Smith (R-Tx) who said that the law would improperly "allow reporters to avoid civic duty." “This is protecting the public’s right to know,” Rep. Pence stressed during the debate.

A journalist is defined as someone who regularly reports and writes for a substantial portion of his/her livelihood or for substantial financial gain. The bill will provide a qualified privilege for journalists with exceptions for national security, the prevention of death or bodily harm, or information that is deemed essential in a criminal case or critical in a civil suit.

A Senate version of the shield bill has yet to be reviewed by the Judiciary Committee. The "Free Flow of Information Act" (S 448) was introduced in February 2009 by Senators Arlen Specter (R-PA), Charles Schumer (D-NY), Richard Lugar (R-IN), and Lindsey Graham (R-SC).

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