Reporter off the hook– this time
Hook reporter Courteney Stuart went into Charlottesville General District Court this morning prepared for the worst, adamant that she would not testify after being subpoenaed as a witness by a prosecutor. Represented by the Rutherford Institute, Stuart filed a motion to quash the subpoena and was ready to argue that it violated her First Amendment, freedom-of-the-press rights. Instead, the Commonwealth and defense attorneys stipulated her article on a misdemeanor drunk-in-public case was accurate, and she was excused as a witness.
"I'm pleased that the situation was taken care of in this one instance," says Stuart after her ordeal. "I hope in the future that will not happen again." That, however, is one thing the Charlottesville Commonwealth's Attorney's Office will not guarantee.
"We talked to the Commonwealth and they made it clear if reporters gather evidence they need, they will subpoena reporters," says Ned Michie (pictured, right), who, along with Doug McKusick, staff attorney with the Rutherford Institute (pictured left, large photo), represented Stuart. "People are going to worry the press are an arm of the police," says Michie.
Neither attorney recalls members of the media being subpoenaed locally, although they say it is happening across the country and is a problem of national importance.
"We wanted to get this cleared up so in the future, the press isn't willy nilly subjected to subpoenas," says McKusick. Such subpoena power puts a "chill" on a free, independent press, he says. "Obviously we were hoping to win it before Judge [Robert] Downer. If we lost, Courteney was prepared to stand by her privilege and we were prepared to appeal it on up."
Stuart had reported on the September 28 arrest of Richard Silva for public drunkenness after he allegedly yelled at Charlottesville Police Officer Mike Flaherty to slow down in a Water Street crosswalk. Silva's financee, Blair Austin, also was arrested for being drunk in public and for obstruction of justice. According to witnesses, Flaherty pushed her to the ground, and the couple allege police brutality. Stuart interviewed the defendants and witnesses, and there were no confidential sources. [An update on Silva and Austin's November 29 trial will follow.]
"The issue is whether the Fourth Estate can be used as an agent of the state to prove their case," says Rutherford Institute founder John Whitehead. "The press has to be in an objective position to give the news. Whether intentional or not, it's intimidating when they're called to testify with a subpoena."
Deputy Commonwealth's Attorney Claude Worrell says Stuart was excused as a witness because Silva and Austin's attorneys agreed to stipulate that her story was accurate– and that in the future he would subpoena reporters if the government needed their testimony.
"We were looking for statements defendants made that inculpate them from [Stuart's] article," explains Worrell.
Whitehead contends that subpoenaing reporters strikes at the First Amendment freedom of the press and has an intimidating effect upon the press.
"We would disagree with that," says Worrell. "A free press, while unfettered in many respects, does not mean they can opt out of their responsibility as citizens to provide information."
Nor does Worrell see any danger of chilling the press by subpoenaing reporters. "It's theoretically possible," he says. "However, your paper's response was to have [editor] Hawes Spencer show up, you showed up, other reporters showed up. It did not chill your efforts to vigorously cover this story."
He also disputes the notion that such subpoenas make reporters an arm of the government. "No one thought the New York Times was going to be seen as a stooge of the government if Judith Miller revealed information on Scooter Libby or Valerie Plame," says Worrell.
"Subpoenas are intimidating; prosecutors are intimidating," argues Whitehead, promising, "We'll be there if they want to do it again."