A reporter for the tiny Dodge City Daily Globe in Kansas was forced to testify at a closed “inquisition” convened late Friday by a prosecutor who had wanted the journalist’s notes and sources from a recent story.
In October, reporter Claire O’Brien went to the local jail and interviewed a Hispanic man accused of killing one man and wounding another in a shooting. In her story, O’Brien quoted a confidential source as saying the wounded man belonged to an organization with “anti-Hispanic beliefs” that had access to automatic weapons.
O’Brien spent 75 minutes on the witness stand on Friday, the AP said. In an email to California Watch, O'Brien said her source came forward to the judge shortly before Friday's hearing, and although she was interviewed extensively, she was not asked to reveal that person's name. O'Brien did not say what she testified about.
"The source coming forward at the eleventh hour was astonishing," O'Brien told her newspaper in a story about the controversy. "He saved me. I was prepared to go to jail to protect his identity."
Ford County Attorney Terry Malone, who was prosecuting the murder, subpoenaed O’Brien to testify at the inquisition, as Kansas calls its grand jury-like investigative proceedings. He wanted her source's identity and demanded her notes.
In an interview with the Topeka Capital Journal, the prosecutor seemed unconcerned about the First Amendment implications of coercing a reporter to testify. He told the newspaper:
In a criminal investigation, if the information being sought is relevant, we believe there is no privilege or immunity for the reporter to keep information secret.
California and most other states have shield laws that bar prosecutors, in most cases, from interfering with reporters and their confidential sources. But Kansas has no reporter’s shield law.
The Daily Globe fought the case to the state supreme court. But the court relied on a 35 year-old U.S. Supreme Court case, Branzburg v. Hayes, which in recent years has been interpreted to hold that news reporters and their sources have no right to confidentiality.
Tuesday, the Kansas high court ordered Bailey to testify. She balked and failed to show up at a hearing. The judge ordered her to be fined $1,000 per day and threatened her with jail if she didn’t testify.
A California-style shield law almost certainly would have protected O’Brien and her source. But there's no shield law in federal courts, and in recent years, aggressive prosecutors have exploited that fact to sidestep state laws.
In the 2006 case of video blogger Josh Wolf, San Francisco police wanted Wolf's video of a street demonstration that turned violent. When he balked, police took the case to the local U.S. Attorney, who claimed federal jurisdiction because federal funds helped pay for a police car damaged in the demonstration. Wolf spent seven months in federal prison before finally turning over his video.
In the waning days of the Bush administration, First Amendment advocates in Congress came close to winning passage of a federal Shield Law. It's pending again before the present Congress.
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