University of Chicago Magazine on Patrick Fitzgerald’s Class on National Security

Pressing questions
Jason Kelly
University of Chicago Magazine
August 1, 2013

In the 1972 case Branzburg v. Hayes, the Supreme Court considered, for the first and only time, a reporter’s claim to First Amendment protection from revealing confidential sources in court. Up to that point any potential witness, journalist or otherwise, could assert only their Fifth Amendment right against self-incrimination. “We are asked to create another [right] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice Byron White wrote for the 5–4 majority. “This we decline to do.”

Patrick Fitzgerald read those words from a PowerPoint slide projected on a screen in a Law School seminar room. The former US attorney who prosecuted Illinois governors George Ryan and Rod Blagojevich taught Investigative, Trial, and Policy Issues in Criminal and National Security Law during the spring quarter.

Fitzgerald distilled White’s decision for about two dozen students seated at tables in a semicircle around him. “Reading his opinion you would have to say that, from the reporters’ side, they lost. Do you recall what Powell’s concurrence said?”