FAC’s Subpoena Defense Initiative Protects Blogger in Celebrity Court Case

There are few things more critical to our democracy than a free press, and few things more critical to press freedom than a journalist’s ability to protect their confidential sources and notes.  

So when a journalist receives a subpoena demanding that they provide this information, in a very real sense, one of the pillars of our democracy is at stake. 

The First Amendment Coalition launched the Subpoena Defense Initiative (SDI) to combat such threats—to provide expert, timely legal assistance to help independent journalists or those working for small, under-resourced newsrooms protect their confidential sources and unpublished work product—the lifeblood of journalism generally and in particular investigative and accountability journalism. 

For blogger Tina Swithin, who called on FAC last month, FAC’s subpoena-defense work meant the difference between being able to continue her work unmolested and having to disclose materials clearly protected under California law and the First Amendment. 

Swithin’s story begins In March 2022, when someone shot a video outside a Los Angeles County courthouse showing two children taken forcibly into a car while police and onlookers watched. The children in the video were the subject of a custody dispute between two prominent celebrity rock musicians—Brody Dalle and Josh Homme—who divorced in 2019. Swithin saw the video and wrote about the incident on One Mom’s Battle, her popular blog about divorce and child custody cases in family court. Posted on December 21, 2022, Swithin’s article criticized the incident and linked to the video.  

On January 7, Homme’s lawyers served her with the first of three subpoenas demanding, among other things, that she reveal the source of the video. 

Swithin reached out to a fellow blogger in the Bay Area who told her to contact the First Amendment Coalition (FAC) for help. She submitted a request through FAC’s legal hotline, and much to her surprise, she received a response within an hour from FAC’s Legal Director, David Loy. 

“The subpoenas to Ms. Swithin were an intolerable attack on the First Amendment. FAC’s Subpoena Defense Initiative is designed precisely to help journalists fight back and protect their right to report on issues of public concern,” says Loy. 

Journalists who contact FAC through SDI receive legal support—information about their rights, advocacy outside of court and, if needed and possible, legal representation either directly from FAC’s legal staff or from our network of leading experts on California’s Journalist Shield Law.

They will receive timely advice about their rights and referrals to attorneys who can help represent them, should the need arise.

Loy and FAC helped Swithin build her defense, gathering facts to prepare a letter explaining to Homme’s attorney that the law barred Homme from obtaining the information she sought—that both the First Amendment and California’s Journalist Shield law protected Swithin. 

Loy’s letter asked Homme’s attorney to withdraw the subpoena. She did not. So Loy referred Swithin to free speech lawyer Matthew Strugar to prepare a motion to quash all of Homme’s subpoenas. Strugar used three arguments in his motion: information about her sources is protected against disclosure by California’s Journalist Shield Law; information about her sources is separately protected from disclosure by the qualified newsgathering privilege under the First Amendment; and the declarations supporting the subpoenas lacked the necessary detail showing that the information sought was actually material to the underlying litigation. 

Judge Dianna Gould-Saltman granted the motion to quash the subpoenas on February 21, relieving Swithin from having to appear in court and allowing her to protect her source. 

Though she’s elated that the subpoenas were quashed, the experience was, she says, “one of the most nerve-wracking things I’ve ever been through because I didn’t understand what my rights were completely.”

“[David] was working on the weekends to help me, immediately right out of the gate. I wasn’t in this alone,” Swithin says, “I am forever grateful.”