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Journalists Should Take the Fifth, Instead of First


This is DAY TO DAY. I'm Madeleine Brand.

Reporters usually cite the First Amendment - with its freedom of the press provision - when challenged by the government. But Attorney General Alberto Gonzales recently said criminal charges could be filed against journalists who report classified information. So maybe journalists should become more familiar with another amendment, the Fifth. That's the right against self-incrimination.

That's the argument made by lawyer and journalist Peter Scheer. He's written an article on the topic for the online magazine Slate. My colleague Alex Chadwick spoke with Peter Scheer about pleading the Fifth.

Mr. PETER SCHEER (Executive Director, California First Amendment Coalition): When you have some genuine reason to fear prosecution, it is obviously a much more powerful defense, a much more complete privilege. Because once you say I can't talk about that because that would violate my right not to incriminate myself, that's the end of the matter.


But here's a problem. We're so used to people invoking the Fifth Amendment, famously before congressional hearings, sometimes in trials for serious criminal cases…

Mr. SCHEER: Mm hmm.

CHADWICK: …but when you see someone invoke the Fifth Amendment, you just automatically assume they're guilty. Right?

Mr. SCHEER: Well, that's right. I mean, that is the logical inference when you see somebody invoke the privilege. Now, first of all, lawyers at least know that's not necessarily the case, that all you're really doing when you invoke the Fifth Amendment privilege is you're saying if you're going to try to put me in jail, I'm not going to help you. I'm not going to sit here and testify to help you put me in jail. But beyond that, you know, you have to ask - in the case of reporters who might be subpoenaed - you have to ask, okay, assuming it is sort of very suggestive of guilt, guilty of what?

In the case of the reporters - for example, at The New York Times - who wrote the stories about the NSA surveillance, those reporters would be implicitly acknowledging that they are guilty of receiving information from a reliable and confidential source about a program which was authorized by the president. And then to have published that information in a story in the newspaper. That's what they're guilty of.

CHADWICK: Well, that…

Mr. SCHEER: It seems to me, that in this context, that's their job. They needn't feel the least bit ashamed about acknowledging guilt, if that's what guilt means.

CHADWICK: Well, but a prosecutor would say, well, what you're guilty of is printing a national security secret that we told you you shouldn't print. You went ahead and did it, so we're going to put you in jail.

Mr. SCHEER: That's what the government would say, and that's what you expect the government to say. And that's why the Fifth Amendment exists, so that you can refuse to incriminate yourself.

CHADWICK: All right. But prosecutors do have another way around this…

Mr. SCHEER: Right.

CHADWICK: …which we also see in congressional hearings and in some trials. They grant immunity to the person whose testimony they want. They say you can say anything, and whatever information you give us in this testimony, we're not going to use that information to prosecute you. And then you're Fifth Amendment rights are taken away, aren't they? You do have to testify.

Mr. SCHEER: Yes, that's correct. The government could immunize a reporter who invokes the Fifth Amendment. A prosecutor is only going to do that if the government is willing to forego indictment against that reporter. We're talking about situations in the case of, I think, The New York Times and The Washington Post where should the government move forward and try to indict, they would not be so eager to immunize the individual reporters.

CHADWICK: And why is that?

Mr. SCHEER: Well, the government really wants to shutdown particular reporters who are the ones, after all, who have the sources that lead to more of those stories. And if not for The New York Times or The Washington Post, then for other publications.

CHADWICK: Opinion from Peter Scheer. He's executive director of the California First Amendment Coalition. You'll find his article on journalists and the Fifth Amendment at

Peter, thank you.

Mr. SCHEER: Well, thank you very much, Alex. Transcript provided by NPR, Copyright NPR.