Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
A scene in the 1987 movie “The Untouchables” shows Sean Connery as a Chicago beat cop instructing federal agent Kevin Costner on how to play tough in the Windy City. Connery finishes his bare-knuckles-to-handguns lesson with this flourish: “… and that’s the Chicago Way!”
Northwestern University journalism students and their professor are getting a taste of “the Chicago Way,” courtesy of the Cook County prosecutor’s office, in their investigation of whether Anthony McKinney should have been convicted in a 1978 killing. Prosecutors have subpoenaed Northwestern’s Medill School of Journalism not just for student reporters’ confidential interviews, but also for personal information on the students, their grades, e-mails between faculty and students, even a course syllabus.
The situation involves application of an Illinois law that shields journalists from such general subpoenas and prosecutorial inquiries. And it concerns whether journalism students investigating criminal convictions are journalists or investigators.
But the entire legal fistfight also is taking place even as a U.S. Senate committee mulls a proposed federal law to shield journalists from such broad-reaching subpoenas, as do most states already. Such a law would have far-reaching implications for how a free press operates nationwide.
Medill’s “Innocence Project,” begun in 1999, has uncovered evidence that helped free 11 innocent men, according to its Web site. Former Illinois Gov. George Ryan said the project’s findings led him to halt executions in 2000.
Prosecutors defending their inquiry into Medill say students may have been under pressure to get good grades by finding the need for a new trial involving McKinney’s 1982 murder conviction, for which he is serving a life sentence.
New allegations about the students’ work surfaced Nov. 10, when officials told a court reviewing the subpoenas that two witnesses said they received money – for example, $60 for cab fare — in return for statements supporting a need for a new trial.
Critics call the subpoenas a not-so-subtle attempt to chill the student project from continuing its research, which has at times embarrassed law enforcement officials; and that the students certainly were gathering information as journalists.
Medill Professor David Protess told the Chicago Tribune that the allegations filed with the court were "so filled with factual errors that if my students had done this kind of reporting or investigating, I would have given them an F."
But Cook County officials have not backed down, the Associated Press reported: "It’s been framed as a witch hunt or a fishing expedition, and it’s not," said Sally Daly, spokeswoman for State’s Attorney Anita Alvarez. "We’re engaging in a discovery process as we would in any criminal investigation."
Martin Kaiser, president of the American Society of News Editors, sent Alvarez a letter Nov. 2 maintaining that the students clearly are journalists under the Illinois law — which he quoted as protecting "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.” Kaiser said that, “based on the results we have seen," the students "excel at their craft,” and added that requesting personal data “appears to be an effort to harass these students, their professors and their University into an ultimate goal of submission.”
Retired federal judge H. Lee Sarokin, writing Oct. 25 on the Huffington Post online site, was even more critical. Noting that he generally loathes comparisons between modern times and the Nazi era as “belittling those horrifying events,” he still said Alvarez’ tactic “warrants and deserves the Gestapo label.” He added: “So I take it that would mean that every time a detective obtained incriminating evidence, his entire background could be examined in order to determine his motives when interviewing a witness?”
Prosecutors certainly need to be able to pursue allegations of criminal conduct. And even the most-protective shield laws acknowledge circumstances in which reporters may be compelled to turn over their work to law enforcement, such as when there is a compelling need for the information and no alternative source.
But the nation’s Founders recognized a need for an independent press that could follow, query and at times, challenge the work of prosecutors and the courts, along with other government institutions. Reporters’ stories and notes are not proof of guilt or innocence, even if their facts raise questions.
The time spent investigating these journalists’ methods would seem better spent investigating whether or not justice actually was served in the original conviction.
Spats over shield laws, definitions of a journalist and cab-fare payments aside, wouldn’t that seem more like “the American way”?
Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: www.firstamendmentcenter.org. E-mail: [email protected]