Demagogue

Once again, a story about a court trying to figure out how to deal with reporters' notes, sources, and so on. Although the case doesn't have nearly as high a profile as the Intimigate investigation, the situation it presents is one that I find frankly more threatening to the functioning of the press than the Judith Miller contempt order.

The case itself may not be grabbing as many headlines as Karl Rove's troubles, but it's not without political importance itself. It is a challenge to a school board's decision to include "intelligent design" in the biology curriculum. Reading between the lines of this article, I think one of the issues in the case is going to be the school board's intention in changing the curriculum: the plaintiffs will try prove that the government was deliberately trying to promote creationism, i.e., a particular religious belief, in violation of the Establishment Clause.

Reading further between the lines, I gather that one indication of the school board's intent (according to the plaintiffs) is that school board members apparently referred to the new component of the curriculum as "creationism" at a public meeting. And--here's where my between-the-lines reading gets a bit problematic--the evidence that they said that is in newspaper articles written about the meeting, in which the board members were quoted as saying that they were putting creationism into the curriculum. (I say "problematic" because the newspaper articles would be inadmissible as evidence of what had happened at the meeting: the articles are hearsay. So I'm not sure exactly what the fuss is about. But bear with me.)

The school board members deny that they ever mentioned creationism at the meeting, and the school board's lawyer has subpoenaed the reporters' notes, apparently to prove that the articles were inaccurate in that respect. The judge is going to review the notes privately, without either side's lawyers getting to see them, and decide if they're relevant; if so, he'll make the newspaper turn the notes over to the lawyers. And, whatever happens to the notes, the reporters themselves may be required to testify as to their recollection of what happened at the meeting.

As I said, newspaper articles that say "X happened" or "Mr. Y said 'Z'" can't be used as evidence that X actually did happen or that Mr. Y actually did say "Z." They're hearsay. It's frustrating sometimes as a lawyer not to be able to use newspaper articles, which from time to time provide the one contemporaneous third-party account of events that you've got. But those are the rules of evidence. And, as this case shows, that rule has good side effects, even apart from the rationale underlying the rule against hearsay in general. If news articles are going to become evidence in court, then the side against whom they're used must, in fairness, have a chance to attack the articles' accuracy. That means finding out how the reporters came to know the things that they wrote, for example, and it could also mean having a chance to cross-examine the reporters in court or at a deposition.

In that respect, I have to agree with the school board's lawyer (although I vehemently disagree with his apparent contention that imposing particular religious beliefs on all public school students has anything to do with "defending the religious freedoms of Christians."

Gillen said the purpose of the subpoena was "fundamental fairness," because his clients wanted the right to cross-examine the reporters if they testified against the board.

He said the writers' reports were "consistently false" and any newspaper articles should be considered "hearsay."

Now, one could argue that a reporter is no different than any other witness when it comes to testifying about what he saw at in a public place. Any person who was at the meeting could be called to testify about what the board members said; why not call the reporters?

But even if that's a valid point, the subpoena in this case goes beyond that, to forcing the newspaper to turn over information about how it came to publish a particular news article. Asking the reporters to testify about what they witnessed is one thing; asking them to testify about why they wrote what they did, why their editor changed it as he/she did, and what non-public sources may have contributed to the story is another thing entirely.

As a litigator, there are plenty of times when I'd like reporters to be, to use the Rovian term, "fair game." They see a lot of stuff and like to ferret out things that other witnesses might not know. But putting my own interests aside, I think it would be a very bad thing if this case were to become the norm, and news articles' veracity became the subject of litigation about the underlying events (obviously, libel cases would still require an exploration of the basis of an article; we're talking here about cases where the newspaper's actions aren't the subject of the lawsuit, but merely evidence in a suit that's about something else entirely).