Jamie Kalven on why his court win isn’t a free-press ‘victory’

Jamie Kalven, circa 2016. Knight Foundation, via Flickr

JAMIE KALVEN’S REPORTING for Slate on the fatal police shooting of Laquan McDonald in 2014 challenged law enforcement’s narrative and helped force the hand of city officials who, under court order, released a police dashcam video showing McDonald being shot again and again as he lay on the pavement. The officer who shot McDonald, Jason Van Dyke, was ultimately charged with first-degree murder.

During the pretrial phase of Van Dyke’s trial last month, defense attorney Daniel Herbert successfully subpoenaed Kalven. Free-press advocates worried the move might force the awardwinning Chicago journalist to reveal his sources or else face a contempt charge. During Kalven’s December court appearance, Herbert argued that Kalven was a “slanted journalist” who had worked with the FBI and others to influence witness testimony.

ICYMI: ‘Cease and desist’: Journalism’s strained relationship with police

Herbert’s legal reasoning behind those arguments is hard to follow. Van Dyke’s attorney alleged that Kalven had received a leak of what amounted to a confession from Van Dyke from a law enforcement source conducting an internal investigation of the shooting. Further, the attorney alleged, Kalven had used that information to coerce other witnesses’ testimony,in violation of Van Dyke’s so-called Garrity constitutional protections, which shield the police officer from self-incrimination.

If Kalven had passed along Garrity-protected statements as part of a supposed campaign to ensure Van Dyke was charged with a crime, it might have pushed Judge Vincent Gaughan to compel Kalven to reveal those anonymous sources. Kalven had said he would not reveal his sources under any circumstances.

Herbert also raised the US Supreme Court’s 1936 ruling on Brown v. State of Mississippi, in which murder convictions for three black sharecroppers were overturned because the men were tortured by white police. Van Dyke’s statements about the shooting, Herbert argued, “should not have been used. It’s the same thing legally as those sharecroppers that were tortured.” Kalven, who tells CJR that the circumstances around Van Dyke’s case are “saturated with people’s presuppositions about race,” sees the Brown v. Mississippi reference as a way of painting Van Dyke as the victim.

Sign up for weekly emails from the United States Project

The Reporters Committee for Freedom of the Press filed an amici brief on behalf of numerous national and Illinois-based news organizations, citing the subpoena’s threats to confidential sources and “the neutrality and independence of the news media.” Kalven attributes much of the support he received to “free-floating anxieties about political freedoms and First Amendment freedoms” under Trump.

Ultimately, the judge ruled that there was no evidence to support Herbert’s claims about Kalven’s role, and quashed the subpoena for Kalven’s testimony—a resounding decision that was characterized as a First Amendment victory.

But in an interview, both Kalven and his pro bono attorney, Matt Topic, warn that the decision shouldn’t be viewed as a cause for celebration. Rather, they contend that the subpoena should have been nixed right out of the gate. “This was a matter of seizing on this venue to essentially slander me,” Kalven says.

Kalven and Topic spoke with CJR about Illinois’ reporter’s privilege law, their concerns for would-be whistleblowers, and what their ordeal might have meant for reporters or small newsrooms with less support. The interview is edited for length and clarity.

 

There was an argument folded into that that I wasn’t really a journalist—that reporter’s privilege wouldn’t really apply to me. That it was a campaign to convict Jason Van Dyke. That I had colluded with the FBI. It got pretty wild.

 

CJR: Tell me why you were called to testify.

Kalven: The allegation was I had received Garrity-protected materials from a source that enabled me to shape witness testimony. It was really kind of hallucinatory that I had from the beginning been engaged in an anti-police campaign.

There was an argument folded into that that I wasn’t really a journalist—that reporter’s privilege wouldn’t really apply to me. That it was a campaign to convict Jason Van Dyke. That I had colluded with the FBI. It got pretty wild. As became apparent during the course of the proceedings, there was zero factual basis for any of that.

We could have a similar situation with a journalist who didn’t have those resources [a pro bono attorney and the support of the Reporters Committee for Freedom of the Press, among others]…

CJR: Or a small publication.

Kalven: So many publications are one frivolous lawsuit away from folding. Obviously, it’s a personal relief to be out from the subpoena and the threat of contempt. But, on the law, I don’t think this should be regarded as a great triumph for freedom of the press.

Topic: It does favor revisiting the way the reporter’s privilege in Illinois is written—which is not bad. But it should not have gotten this far.

 

Imagine you’re the source going through all this, and imagine how that feels. And imagine if you’re someone who’s not sure if you want to be a source… You’re concerned about police misconduct. And it ends properly, but not before a lot of sweating.

 

CJR: What, specifically, should we revisit about the Illinois reporter’s privilege law?

Topic:  There is a doctrine beyond the reporter’s privilege called the “special witness doctrine.” Before you can go forward with the subpoena, you have to explain a lot of things to the court. That was one of the issues here.

Ultimately the court didn’t rule on it, but were they seeking [Kalven’s ] source? They were seeking the name of the person and other information in the scope of a source, which would have gotten around the reporter’s privilege law, but we might have had to produce information where the source could have been identified.

Kalven:  That’s where we would have gotten into trouble … [and] where the contempt might have come.

Topic: Imagine you’re the source going through all this, and imagine how that feels. And imagine if you’re someone who’s not sure if you want to be a source… You’re concerned about police misconduct. And it ends properly, but not before a lot of sweating.

To their credit, most reporters are pretty brave in this situation. There’s almost a badge of honor to go through this. But if you’re a source or potential source? You’d really have to think twice about it. And that’s something we should be really concerned about when it comes to police misconduct, especially in the city of Chicago.

CJR: Will it have a chilling effect on whistleblowers?

Topic: I think it makes people think more.

Kalven: It’s a critical point. It’s important to remember, because this stuff gets overdramatized in terms of the reporter. And as welcome as all the support was, I regard this simply as being part of the job.

CJR: Do you think there was a Trump effect at play here?

Kalven:  Yes. I mean, this could have arisen at any time… [but] the feel of it as a public controversy was very much of this moment and the amount of support we got was a reflection of that.

We have a president right now who believes in seditious libel —that public officials should be able to sue their critics, which is such a fundamental departure. This administration is going to be appointing judges. There’s this question of our role as journalists in upholding these constitutional traditions exercising these freedoms in increasingly dark times. We have a lot of power in that respect.

CJR: At one point in the transcript, Van Dyke’s attorney says he actually doesn’t need to know the name of your source. What was going on there?

Kalven: Van Dyke is due the most vigorous defense that can be made on his behalf. But you could see this sort of counter narrative they were trying… a fake news narrative. That I had, with the collusion of the FBI and others, sort of manufactured a story that was harmful to Van Dyke to the degree that Herbert invoked a 1936 decision of the Supreme Court, Brown v. Mississippi, in which the court set aside the convictions of three sharecroppers… So the energy, the endless energy of the counter narratives is what we might see as this trial goes forward. …  This case is just saturated with people’s presuppositions about race.

Topic: There were a number of arguments that were based on representations that Van Dykes’ attorney made about what documents showed that were completely untrue. …  It was to have an audience for this notion that there’s an anti-police environment, and no police officer can get a fair trial because of the way the environment is. I kind of wonder if that was a little bit about what was going on here.

ICYMI: How a little-known, Uber-driving freelancer brought the lawsuit that forced Chicago to release a police shooting video

Has America ever needed a media watchdog more than now? Help us by joining CJR today.

Jeremy Borden is an independent journalist based in Chicago. Follow him on Twitter @Jeremy_Borden.