Monday, March 04, 2013
Duke Confronts the First Amendment
As some DIW readers know, last summer, I received several subpoenas from Duke, demanding among other things my confidential communications with hundreds of people relating to the “lacrosse incident” or discussing in any way President Brodhead’s “job performance.” The targeted correspondents consisted of all members of the 2006 lacrosse team, including the three falsely accused players who had long ago settled with Duke; all lawyers who were involved in the civil suit; all Duke faculty members; all Duke administrators or other employees; and all Duke alumni.
The subpoena also demanded many of my (but not co-author Stuart Taylor’s) interview notes for Until Proven Innocent; all portions of the criminal-case discovery file that I (but not Stuart) used for our co-authored book; information about the blog’s legal guidelines, terms for which are set solely by Google; and details of the blog’s comments policy, which are publicly available on the DIW homepage.
The subpoena surprised me, for two reasons. First, it’s true that many institutions of higher learning don’t respect the First Amendment in their own policies, as a glance through the FIRE website shows. (Duke itself has a rating indicating ambiguous policies “that too easily encourage administrative abuse and arbitrary application.”) Nonetheless, major research universities rarely launch a frontal attack on First Amendment and academic freedom privileges as Duke did in this instance, lest they create a precedent that could be used against their own faculty members in the future. A major research university that deems itself “happy” with forcing researchers to turn over internal correspondence in a civil suit to which the professor isn’t a party—as Duke’s attorneys described the university’s attitude to Maine District Court judge Brock Hornby—will have trouble attracting quality scholars, at least those whose research in any way touches on controversial, contemporary matters. In short, self-interest almost always leads universities to defend, rather than undermine, First Amendment academic privileges.
Second, and perhaps revealing its true intentions in this action, Duke did not subpoena a host of similarly-situated news-gatherers. (In its legal filings, Duke theorized that my having interviewed some of the plaintiffs or their attorneys on the record suggested that I was no longer entitled to a journalistic privilege for confidential unpublished exchanges with sources.) Along with Stuart, whose personal contact with figures related to the case predated my own, this “non-subpoenaed” list included It’s Not About the Truth primary author Don Yaeger, who “interviewed more than seventy-five key figures intimately involved in the case”; former Chronicle reporter John Taddei, who conducted the first on-the-record interviews with any of the plaintiffs in the civil suit; and a variety of other reporters.
But one important factor did distinguish me from the journalists mentioned above. In a letter submitted to the court, Duke rationalized its litigation strategy on grounds that I “continue[d] to this day to blog about the events underlying this litigation.” That description did not apply to the journalists on the “non-subpoenaed” list.
My initial first-hand encounter with the Duke’s Ellis & Winters attorneys came not in the lacrosse civil suits, but in the lawsuit filed by Katie Rouse. If I was surprised by the lacrosse subpoenas, I was shocked to receive a subpoena regarding Rouse: as was clear from the blog and the book, I had done no original reporting on Rouse. Setting a pattern, Stuart was not subpoenaed, without explanation, even though Duke purported to be interested in material from our co-authored book; and, to the best of my knowledge, Duke did not subpoena the media sources that my post had cited.
In the event, although I informed Duke that I had done no original reporting on Rouse and had no confidential communications relevant to the lawsuit, Duke flew two attorneys from the Triangle to Maine to depose me. (By the end of the case, and apparently eager to cut its losses before the Maine District Court, Duke would change its mind about conducting depositions without responsive documents.) In a session that lasted more than two hours, the questions ranged far beyond anything remotely related to the Rouse case, culminating in what might have been the oddest complaint I received from any source over the history of the blog: whether, in summarizing a lawsuit in a post that quoted from Duke’s own legal filings, I made “any attempt . . . [to] get Duke’s side of the story.”
When subsequently confronted with this record, Duke’s lead attorney, Tom Segars, told a Maine magistrate judge that “our intention here is not to criticize his editorial comments about Duke’s handling of the case or even really pry into those.” He never reconciled this assertion with his colleagues’ Rouse deposition questions.
Even without this troubling experience from the Rouse case, I would have resisted Duke’s efforts to obtain my confidential, unpublished communications. DIW was and remains a one-person effort; the blog survived and (to the extent it did) broke original stories solely because I developed a reputation as someone who sources could trust. My transformation into a glorified research assistant for Duke would have betrayed the trust that these sources placed in me.
Also, since 2009 I’ve blogged regularly at Minding the Campus, where I often cover controversial topics that are or might be the subject of civil litigation. If Duke succeeded in creating a precedent compelling me to turn over confidential, unpublished communications, there’s every reason to believe other universities about which I’ve written critically would have tried the same thing—resulting in my MTC sources drying up.
Fearful that Duke wanted to improperly use the deposition process as a means to intimidate a critic, and given the extraordinary breadth of the lacrosse case subpoenas—complying with them would have given the university a road-map to retaliate against every Duke employee, including faculty members, who had provided me with confidential information—I realized I needed legal assistance, which I had lacked in the Rouse matter. With help from Stuart and from John Leo, I reached out to the Reporters Committee for Freedom of the Press. They put me in touch with Bingham. My primary attorney with Bingham, Patrick Strawbridge, was sensational.
After I retained counsel, the university suddenly dropped its demands for my exchanges with Duke administrators, faculty members, and alumni, as well as its demands for material related to the publicly-available blog rules and procedures. At no point in the case, in any letter, court filing, or hearing, did any of Duke’s many attorneys ever provide a justification for subpoenaing all of my correspondence with Duke faculty members about Brodhead’s “job performance.”
(An aside: while forcing me to reveal confidential, unpublished information would have crippled my ability as a news-gatherer, both at DIW while it remains active and in my other blogging efforts, Duke had no reason to believe that anything from my files would help the university’s legal case. In the normal discovery process involving the lacrosse plaintiffs and their parents, Duke already had obtained scores of e-mails to or from me. Yet at no point, in any letter or court filing, did Duke bolster its case by presenting even one e-mail that I sent, or one e-mail a lacrosse player, parent, or attorney sent to me. That’s not surprising, since the e-mails at issue reinforced the arguments presented in the blog and book, arguments the university seemed desperately eager to discredit.)
Duke opened the legal battle with what it presented as a compromise: the university’s motion to compel said that Duke would be satisfied with my turning over all unpublished, confidential correspondence with the lacrosse players (not just the plaintiffs), their parents, their attorneys, and at least one law firm employee regarding all events between March 16, 2006 and March 28, 2006—plus several specific issues (such as the punishment of Ryan McFadyen) that extended beyond this timeframe. In exchange, Duke offered to cease demands for my case-related correspondence with Duke professors or with Stuart. This “compromise” actually expanded the scope of Duke’s original subpoena to include my exchanges with parents, and bizarrely purported to exclude exchanges with Stuart, even though the original subpoena hadn’t covered such material.
In our response, Patrick Strawbridge explained that “left unchecked, Duke’s efforts could chill further reporting on the continuing fallout from the Duke lacrosse case—a matter of obvious public importance.” He also pointed out the similarity between my case and another First Circuit case that Duke initially tried to avoid, Cusumano, in which the court blocked Microsoft’s efforts to obtain interview excerpts between two professors (one from Harvard, the other from MIT) and Netscape officials; and held that academic researchers were entitled to the same First Amendment protections as journalists.
Oral argument before Magistrate Judge John Rich occurred in early October; Duke’s Segars, who led off the hearing, offered several statements that appeared to conflict with the facts of the case. To take one particularly outrageous example: the Duke attorney asserted that I was “the only other source” other than the players themselves for near-contemporaneous statements from the lacrosse players (“If those facts and statements are unavailable from the plaintiffs, the other party can seek them from the only other source . . . We’ve done this as an option of last resort”). But—not even counting their friends or roommates, to whom the lacrosse players might have confided in spring 2006—the future plaintiffs had conducted on-the-record interviews with several other journalists, none of whom were subpoenaed. When pressed on this matter in rebuttal, Segars denied improper selectivity, noting that Duke had also subpoenaed former coach Mike Pressler(!)—who (to, no doubt, his great surprise) apparently gained retroactive status as a journalist on the basis of co-authoring his memoir.
On October 12, Judge Rich nonetheless decided in Duke’s favor. He appeared to see his role as giving Duke some, but not all, of what it wanted, blind to the fact that giving Duke anything contravened both First Amendment principles and any fair-minded interpretation of Cusumano.
So we appealed to the Maine District Court, where the case was assigned to Judge Brock Hornby. Patrick penned an excellent brief (our most comprehensive survey of the case) and a hard-hitting response to Duke’s defensive filing. The reply, which welcomed Duke’s belated recognition that Cusumano was in fact the relevant precedent for this dispute, caught several errors of fact or creative use of ellipsis on the university’s part.
Maine’s media organizations—recognizing the threat that Duke’s conception of the First Amendment posed to their reporters—also filed amicus brief arguing that that the Rich order, and the Duke standard on which it relied, “disregards the important principle that journalists must be free to work independently of the judicial process . . . and dismisses the very real chilling effect that a decision like this will have on the public’s receipt of information in important controversies.” The Reporters Committee for Freedom of the Press, the Portland Press-Herald, the Bangor Daily News, and the Maine Association of Broadcasters feared that Rich—and Duke—tried to obscure how the case represented “a question of the much greater interest in serving the public good by creating informed communities.”
At the January 23 appeals hearing, Judge Hornby appeared acutely interested in the First Amendment ramifications of Duke’s claims. Noting Duke’s desire to force a professor to turn over unpublished research material, the judge asked Segars if he actually was representing Duke as an institution. (That’s when Segars said that he’d be “happy” to see Duke professors live under the university’s proposed standard for me, a revelation that I doubt the Brodhead administration has shared with any Duke faculty members.) Judge Hornby also pressed Segars on Duke’s apparent indifference to chilling academic freedom, wondering whether Duke’s proposed standard would require any professor who planned to publish a book on a controversial topic to retain counsel for subsequent third-party involvement in civil suits. And Segars had a difficult time articulating a benign reason why Duke had subpoenaed only one author of a co-authored book, given that Duke had no idea whether Stuart or I was the primary researcher for the sections of UPI in which the university claimed interest.
It’s always dangerous—as Jeffrey Toobin discovered after the Obamacare ruling—to anticipate judicial decisions based on questions that judges ask. But at the very least Judge Hornby seemed sensitive to the First Amendment problems posed by Duke’s arguments, and skeptical about the university’s rationale for why it would need access to my confidential, unpublished communications. After the settlement of one of the two civil suits, and amidst another Strawbridge letter that undermined what was left of its claims, Duke withdrew the remaining subpoenas before Hornby had a chance to file his opinion. By this stage, avoiding an opinion that might have branded one of the nation’s leading research universities as an enemy of the First Amendment was as close to “victory” as Duke would come in this matter.
Over a nine-month period, Duke filed six subpoenas, produced three briefs, wrote two letters, thrice sent teams of attorneys to Maine, and hired an additional lawyer from Portland—all in order to gain access to unpublished, confidential information of a professor at another institution.
Recall that record the next time Brodhead administration officials claim reverence for academicfreedom or the First Amendment. Indeed, Duke’s performance in this case exposes the hollowness of the university’s commitment to any conception of academic freedom.
A final note: things are always better when you have a great lawyer. I was extremely fortunate in this regard. For those interested: here’s a full archive of my attorney’s legal filings, plus Judge Rich’s decision and Duke’s defensive and sometimes misleading offerings.