Reporter’s privilege and Dover intelligent design case
To help folks understand the concept of reporter’s privilege – at issue in the Dover intelligent design trial – we put forth a column of explanation. I hope this makes the concept a little clearer:
By now, you might have read that freelance writers for the two York newspapers have been compelled to testify, under the warning of imprisonment or fines, in the Dover intelligent design trial.
So what? You might be thinking.
The writers for the York Daily Record/Sunday News and The York Dispatch were there, witnessing Dover school board members indicate motivations for introducing intelligent design into high school curriculum. They should stand up for what they wrote.
To heck with any court-tested reporters’ privilege giving the writers protection from testimony, if other witnesses at Dover school board meetings could say the same thing.
Consider it this way.
What if attorneys for the plaintiffs — the ACLU et al — had subpoenaed the school board’s solicitor rather than a couple of reporters?
The solicitor was privy to discussions beneficial to the plaintiffs’ case, same as reporters.
No way, you might argue.
That would undermine attorney-client privilege. Public officials and regular people would no longer enjoy the confidentiality of talking with their attorneys.
Well, the law has granted similar reporter/source privileges of confidentiality and other protections to journalists in their news-gathering efforts.
Otherwise, reporters would be called constantly as witnesses in trials, thereby being forced to testify for one side or the other. They would, indeed, be tainted — seen as pawns for one side or opponents to the other.
Suppose you were at a township meeting, heatedly speaking out on eminent domain or some other thorny issue. If the case went to court, how would you view a reporter testifying about what you said or didn’t say?
As our correspondent Joe Maldonado puts it, he’d have to read a “reporter’s Miranda warning” to sources during interviews, stating that whatever they say could be held against them in court, and he might be the one to testify against them on the stand.
That’s why the privilege exists to protect reporters against testifying in civil cases if other witnesses are available, as in the Dover case. ……….
A puzzling part of this massive Dover ID trial is that the ACLU, of all organizations, risked undermining the First Amendment and the incarceration and fining of correspondents Maldonado and Heidi Bernhard-Bubb.
The ACLU touts itself as a protector of the First Amendment. It’s guarding against government-established religion in the Dover case. Meanwhile, it took a shot at the part of the amendment protecting freedom of the press.
The ACLU went after the reporters as corroborating witnesses. They already had testimony linking board members’ views with the introduction of ID. The reporters were merely called to underscore this.
Worse, had a compromise not been reached, the reporters could have ended up in jail, owing substantial fines.
Acting against a federal court order, both Joe and Heidi refused to testify at a deposition prompted by the ACLU’s insistence that they take the stand. They believed that the judge’s order was too broad and that their testimony would make it easier for attorneys to drag reporters into court in the future.
The order required them to testify about published and unpublished facts.
Their resistance resulted in a meeting of what seemed to be a thousand legal minds after which Judge John E. Jones III clarified that his order required testimony narrowly restricted to what appeared in the newspaper.
The reporters found this acceptable — not perfect — but something they could live with. And certainly better than prison.
Iwas with Joe Maldonado and his wife, Julie, when Niles Benn, our attorney, informed them of the judge’s order narrowing their testimony. That brought tears and phone calls home with the message: Daddy isn’t going to jail.
An ACLU attorney stopped by to say he would never have sent the reporters to jail.
Yeah, right, I thought.
And he didn’t mention anything about the fines.
It’s just a sad case of ACLU lawyers in expensive suits picking on a guy with only one. And if Joe had taken the stand without the judge’s narrow order to stick to what’s printed, the school board’s Thomas More Law Center attorneys would have done their best to take that off his back on cross-examination.
Thomas More lawyers would have done that on the dubious theory that two reporters working for fiercely competitive newspapers would have made the same things up.
The public should view Joe Maldonado and Heidi Bernhard-Bubb as the truth-telling heroes they are.
They are two everyday people who stood up for First Amendment principles and stared down bullies with polished shoes and thick wallets, trying to draw them into their scuffle when the plaintiffs already had enough friends with their sleeves rolled up.