In ordering a Chicago reporter to submit all tapes and materials of anti-war protests, a federal judge found no constitutional basis for reporter’s privilege. -DB
Reporters Committee for Freedom of the Press
May 8, 2009
By Samantha Fredrickson
A reporter for a cable-access show in Chicago was ordered by a federal magistrate judge last week to hand over every video recording he made documenting anti-war protests from 2003 to 2005.
The reporter, Martin Conlisk, was subpoenaed by the city of Chicago during the course of its defense of a civil rights lawsuit filed by a local man who was arrested during a March 2005 anti-war protest. The protester, Andy Thayer, sued the city in 2007, alleging that his constitutional rights were violated by the arrest and claiming that the city’s policy of sending cops in riot gear to protests was a means to suppress speech.
Conlisk had been on the street corner filming the day Thayer was arrested and had testified in the man’s disorderly conduct criminal trial.
But in the lawsuit, the city’s subpoena requested much more than the video from the day of Thayer’s arrest. It ordered Conlisk to hand over all tapes and material that documented the planning and implementation of all anti-war protests in the city from March 2003 to the present, including everything on his computer hard drive. It also ordered him to testify about those videos.
In the April 30 ruling, the magistrate judge, Arlander Keys, refused to apply a reporter’s privilege, holding that courts in the Seventh Circuit have “rejected the notion of a federal reporter’s privilege.”
He wrote further that neither the First Amendment nor the Federal Rules of Evidence supported any privilege. He also refused to apply Illinois’ shield law because the case was brought in federal court.
The court analyzed the subpoena under general procedural rules that allow the quashing of all subpoenas if they are found to be burdensome, irrelevant, unnecessary or overbroad.
The court disagreed with Conlisk’s arguments that the subpoena was burdensome because it was an intrusion into his work product that would impinge upon his credibility as a reporter.
“Absent a showing of actual burden, the Court is not inclined to allow Mr. Conlisk to avoid enforcement of the subpoena with a backdoor attempt to impose a privilege,” Keys wrote.
Additionally, the subpoena was deemed relevant to a determination about the city’s policy of sending police officers to protests, since Conlisk has documented many of the city’s protests over the years.
The court did, however, find the subpoena slightly overbroad and limited what Conlisk had to turn over. Instead of providing everything he gathered in the last six years, the court ordered the reporter to turn over his tapes from 2003 up until the day Thayer was arrested in 2005. Additionally, the court said Conlisk did not have to turn over his hard drive.
Copyright 2009 The Reporters Committee for Freedom of the Press.