Journalism professor, students face subpoenas and accusations - what does it mean for the rest of us?

7 years ago

At the same time that leading journalists and scholars are calling on college journalism programs to help fill the void left by the decline of newspapers, a court case in Illinois is raising questions about the legal status of student journalists that could have a chilling effect on the risks that journalism professors will ask their students to take.

The court case involves an effort by Cook County prosecutors to obtain student grades, emails and other correspondence from Northwestern University journalism professor David Protess, founder of the Medill Innocence Project. Protess and his colleagues founded the project in 1999 to investigate cases of convicts who might have been wrongfully incarcerated. Over the last decade, their findings have led to the exoneration of 11 men - five of them liberated from death row. Last November, they announced that after a three-year probe, they'd found enough evidence to warrant a new trial for death row inmate Anthony McKinney. McKinney has been imprisoned since 1978 for the murder of a security guard. 

According to the Medill investigators, people who say that they saw the crime assert that McKinney was not at the scene. One witness said he had been beaten by police until he made a statement implicating McKinney. 

Innocence Project

County prosecutors alleged that to get good grades, the students paid witnesses to make statements supporting McKinney's claim of innocence. They claim that one witness was given money to buy drugs. Protess and the students deny the charges. They acknowledge having paid for cab fare for one witness, and say they have receipts for all of their expenses.

At the hearing, attorneys for Protess and Northwestern insisted (.pdf) that the state's shield law (.pdf) allowed them to keep their correspondence private. That law defines a journalists as:

"any person regularly engaged in the business of collecting, writing or

editing news for publication through a news medium on a full-time or part-time basis; and

includes any person who was a reporter at the time the information sought was procured

or obtained."

County Attorney Anita Alvarez and her staff argued that the shield law only applies to confidential sources, not to documents.

At a Nov. 20 hearing on a motion by Northwestern's attorneys to quash the subpoena, Cook County Circuit judge Dianne Gordon Cannon sharply criticized the Medill attorneys for the tone of their brief. Among other things, the brief accuses the County Attorney's office of:

a surprising lack of comprehension of the requirements of the Illinois Reporter's Privileges Act and an equally surprising lack of affinity for the First Amendment values that underlie the Act and the role of investigative reporting in promoting those values.

According to Lynne Marek of the National Law Journal, Judge Cannon told the Medill attorneys that their brief was "dripping with sarcasm" and "reprehensible." Some of the criticisms seemed odd - for example, Cannon said the brief lacked requisite attorneys' signatures, but that turned out to be incorrect. Another hearing has been scheduled for January.

According to Erin Geiger Smith of the Business Insider Law Review, Protess said the prosecutor's brief was:

so filled with factual errors that if my students had done this kind of reporting or investigating, I would have given them an F 

The National Review has more details on what Protess says the prosecutors got wrong.

I think Smith has it right when she says:

Payment to a witness is of course relevant information and, if it happened, prosecutors are rightly interested in that information, as long as getting it does not violate any press shield laws.  

Students' grades, however, still seem outside the scope, as do their off-the-record notes not directly relevant to any payment.  It just is not the job of the students to do the work for the prosecutors.  The state should be able to "solve" the case in the same way the students did -- or, if is the case may, didn't -- and should be able to get the relevant information without crossing the line into attacking the student-journalists.  

This is a case that's going to be watched closely not only by pros, but by journalism professors like me. Will we need to "lawyer up" to do the kind of investigative reporting that's increasingly becoming our responsibility?



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