Current and former University of Chicago student journalists are facing subpoenas for their sources and unpublished information after reporting on a dispute between the university and one of its largest donors.
In the summer of 2017, a Chicago resident discovered a collection of documents in a train station trash can and, seeing that they related to the University of Chicago’s administration, turned them over to the university’s student newspaper. The cache was a bonanza for student journalists at The Chicago Maroon, which published them as part of a series. Besides information about the donor dispute, the documents — which a university statement said were “inappropriately obtained” — also revealed that the university had invited former President Barack Obama to keynote a planned conference on academic freedom; that administrators considered a more aggressive response to outside groups critical of Students for Justice in Palestine; and a summary of the university’s budget.
Utilizing the documents, then-editor Euirim Choi broke the news of a dispute between the University of Chicago and the Pearson family, whose $100 million donation was the second-largest in the university’s history. That dispute, he reported, spilled out into a lawsuit against the university, filed in a federal court in Oklahoma by the family’s foundation.
As CNN Business reporter (and former Maroon staffer) Jamie Ehrlich reports, the subpoena broadly seeks information about the reporting process, information about the source, and the original, unpublished, and unredacted documents:
The subpoena states that Choi must turn over “all communications with anyone at The University of Chicago or The Chicago Maroon regarding The Pearson Institute for the Study and Resolution of Global Conflicts.”
The Pearsons have also requested information into Choi’s reporting process, asking for “all documents ‘related to or evidencing the manner in which you or The Chicago Maroon obtained the document… without limitation the identity of the author …. and the location and circumstances under which the document was obtained.’”
Most federal circuits recognize some qualified privilege for reporters in civil actions, allowing journalists to resist subpoenas in some circumstances. As the Reporters Committee for Freedom of the Press explains:
The privilege as described by [Justice Potter] Stewart weighs the First Amendment rights of reporters against the subpoenaing party’s need for disclosure. When balancing these interests, courts should consider whether the information is relevant and material to the party’s case, whether there is a compelling and overriding interest in obtaining the information, and whether the information could be obtained from any source other than the media.
Few federal courts, however, have addressed the question of whether student journalists — too often excluded from state statutory privileges — may invoke the federal privilege.
Fortunately for Choi and the Maroon, the Tenth Circuit — whose jurisdiction includes Oklahoma, where the subpoena was issued — not only recognizes a qualified privilege, but has applied it to a student journalist. In Silkwood v. Kerr-McGee Corp., a film student interviewed witnesses about the death of a scientist and labor activist who was contaminated by plutonium. Her estate, suing her employer, subpoenaed the film student, arguing that he was not a “genuine reporter” entitled to assert a privilege. The court disagreed, declining to find that that the fact that he was “not a salaried newspaper reporter” was sufficient to deny him the privilege.
Choi and the Maroon staff are a good example as to why student journalists should not be left out of the coverage of reporters’ privileges. As local news outlets decrease in number, student journalists increasingly provide coverage critical not only to their campuses, but also to the surrounding community — or to the nation. The Maroon, for example, was credited by The Wall Street Journal with breaking the story of the Pearson lawsuit.
Student journalists, paid or not, provide the same public service as professional journalists and must be afforded the rights and privileges that attend to that role. A student journalist faces the same legal perils as a reporter in a “traditional” newsroom and the purpose of the privilege — to win the confidence of sources who might otherwise be reluctant to come forward with information important to public affairs — does not turn on whether or not the journalist earns a paycheck, or whether the outlet’s masthead includes the words “university,” “college,” or “student.”
It would be easier for Choi, who is graduating, to give up the records. But Choi, represented by Matthew Topic of Loevy & Loevy, plans to fight the subpoena:
The law isn’t always clear whether legal protections for professional journalists apply to their student counterparts. I hope that fighting this subpoena vigorously will change that and discourage powerful parties from subpoenaing other student journalists going forward.
— Euirim Choi (@euirim) May 28, 2019
The Pearson foundation would be wise to withdraw the subpoena rather than face a motion to quash — one they’re likely to lose, as the records they seek don’t seem to be critical at all to the underlying lawsuit. If they don’t, it’s good to know that journalists like Choi are willing to stand their ground.
To learn more about student journalists’ rights, check out FIRE’s Student Press resources.