The First Amendment Transcends the Law


On December 13, I entered the Cook County Courthouse in Chicago prepared to be taken into custody and jailed for contempt. At issue was a subpoena demanding I answer questions about the whistleblower whose tip prompted me to investigate the fatal 2014 police shooting of 17-year-old Laquan McDonald.

Were it not for that individual, who had disclosed the existence of dashcam video of the incident and provided a lead that enabled me to locate a civilian witness, we would not know the name Laquan McDonald. Once I had secured the autopsy report that revealed the boy had been shot 16 times, I published an article in Slate challenging the police account of the shooting. Months later, when the video was finally released, a cascade of events ensued: The superintendent of police was fired, as was the head of the agency that investigates police shootings; the state’s attorney was voted out of office; the United States Department of Justice initiated an investigation of the Chicago Police Department; and the officer who shot McDonald, Jason Van Dyke, was charged with first-degree murder.

It was in the context of the murder case that I was subpoenaed. The judge, Vincent Gaughan, permitted Van Dyke’s lawyers to seek to compel me to testify on the basis of their claim, for which they offered no evidence, that the source had given me documents protected under the Garrity rule, which protects public employees from being compelled to incriminate themselves during internal investigations conducted by their employers.

From the outset, I made it clear that I had received no Garrity-protected documents and that I would refuse to answer any questions that might reveal the identity of the source. There was nothing heroic about this stance. It was not a choice. I was simply doing my job as a reporter.

The litigation was complicated by a gag order — more delicately referred to as “decorum order” — that Gaughan had imposed at the outset of the Van Dyke proceedings. As a result, some of the pleadings in this legal controversy over freedom of the press were sealed.

It was only during a hearing in open court on December 6 that the press and public became aware of the “fake news” thesis Dan Herbert, Van Dyke’s lead attorney, was advancing. He claimed I was not a reporter, but an activist — hence unprotected by reporter’s privilege — and had been engaged from the start in an anti-police campaign that did grievous harm to his client’s constitutional right to a fair trial. In the course of that campaign, he alleged, I had colluded with FBI agents who allowed me to sit in on interviews with two civilian witnesses to the shooting, and I had also conspired with the lawyers for McDonald’s family. Central to Herbert’s argument — if something so hallucinatory can be said to have a center — was the claim that I had drawn on knowledge gained from Garrityprotected statements to shape the accounts of civilian witnesses in a coordinated strategy designed to convict Van Dyke.

Herbert’s thesis about my reporting may prove to have been a dress rehearsal for the trial. It reflects the general stance of the Fraternal Order of Police (which is widely believed to be paying for Van Dyke’s defense) with respect to any and all allegations of police misconduct. The FOP asserts in the strongest possible terms that the police are victims of a conspiracy in which the civil rights bar is aided and abetted by the media. In any particular case of alleged abuse, the accused officer is thus the real victim.

Herbert closed his argument by invoking Brown v. Mississippi, a 1936 case in which the Supreme Court set aside the convictions of three black sharecroppers for the murder of a white farmer on the grounds that their confessions had been coerced by police torture. The three men had been repeatedly and mercilessly whipped; and one had been hung from a tree limb in a mock lynching that left rope scars on his neck. Van Dyke, Herbert argued, had suffered comparable harms from my reporting. “It’s the same thing legally,” he said, “as those sharecroppers that were tortured.”

It was a stunning moment. The Laquan McDonald case invites comparison to the lynching of Emmett Till, another child of Chicago, in Mississippi in 1955. The dashcam video can be seen as the counterpart to the fateful decision of Till’s mother to have an open casket at her son’s funeral: a window through which a mutilated black body illuminates the violence that enforces structures of exclusion and inequality. Whatever the outcome of the murder trial, that is the light in which many Chicagoans are struggling to come to terms with the incident. So it was startling, even in the adversarial setting of the courtroom, to hear the assertion that it is Van Dyke who is in danger of being lynched.

On December 13, my lawyers and I came to court prepared for several alternative scenarios. The issues had been fully briefed. Our first line of argument was that the subpoena failed to satisfy minimal criteria of relevance. Beyond that, we made clear that I would invoke reporter’s privilege. That is where things promised to get complicated, for the judge appeared to favor a narrow reading of the term “source” that would allow other lines of questioning so long as I was not explicitly asked the name of the source — questions I would refuse to answer.

In the end, the hearing proved anticlimactic. Gaughan distributed a written order quashing the subpoena. He did not reach the issue of reporter’s privilege. “To uphold the subpoena of Jamie Kalven,” he wrote, “would be nothing more than a fishing expedition in search of information that the timeline of events, discovery documents, and testimony suggest simply does not exist.”

The ruling has been hailed as a victory for freedom of the press. Needless to say, it was a relief for me. Yet the episode warrants a closer look for lessons it might yield.

Gaughan’s well-reasoned ruling came only after two months of litigation that significantly disrupted my life and required substantial investment of legal resources. Imagine how harrowing such a situation could be for a reporter who was not as well-positioned as I was. Or for a publication struggling, as so many are, to survive economically. Imagine living in a society in which attorneys could routinely haul reporters into court and inflict comparable costs on them and their publications with no more showing of relevance than was made in this case.

It would thus be a mistake to see the quashing of the subpoena as a legal victory for freedom of the press. Yet it was a victory of another sort. The support I received was extraordinary. My attorney Matt Topic and his colleagues at Loevy & Loevy provided superb pro bono legal representation. The Reporters Committee for Freedom of the Press filed an amicus brief and recruited 18 major media organizations to join it. The judges of the Hillman Prize issued a statement of support that was signed by hundreds. And I received words of encouragement and offers of assistance from numerous individuals and organizations.

Although the controversy over the Van Dyke subpoena could easily have arisen at another time, it somehow belongs to this historical moment of “fake news” discourse and accelerating devolution of the federal judiciary. My refusal to comply with the subpoena, it appears, provided a vehicle for others to express their anxieties about and commitment to the First Amendment.

The experience has left me brooding about the power of civil society to sustain First Amendment freedoms in challenging times. In this country, we tend to take a legalistic view of those freedoms: to see them as being defined by legislatures and courts. That orientation is at once a strength and a weakness. It is a strength in that First Amendment adjudication has over time yielded an extraordinarily rich body of experience, analysis, and reflection about a range of issues. It is a weakness in that we are prone to imagining we are somehow free because we “have” the First Amendment.

This line of reflection carries me back to the beginning of my career as a writer. My father, Harry Kalven Jr., was a constitutional scholar at the University of Chicago Law School. When he died in 1974, he was in the middle of an ambitious intellectual history of the First Amendment at the level of the U. S. Supreme Court. He bequeathed an unfinished first draft of some 1,200 pages, which I had spent more than a decade preparing for publication. It was ultimately published in 1988 under the title, “A Worthy Tradition: Freedom of Speech in America.”

Thirty years later, “A Worthy Tradition” is dated in some respects, not surprisingly, but it is also powerfully relevant to the current moment. A major theme of the book, reflected in its title, is that the American experience under the First Amendment has yielded something more than a body of legal precedents. It is a tradition of the society — a tradition that has power to guide us as citizens and journalists and that we in turn have power to nourish with our actions.

Viewed as a tradition, the meanings of the First Amendment in American life are thus not confined to what the Supreme Court says at any given moment. The narrative matters, as well as the precedents. At various junctures in our history, a heightened sense of the nation’s vulnerability in a dangerous world has brought on failures of nerve and attacks of constitutional amnesia. At such times, national security concerns have eclipsed our core values, yielding legislation, administrative procedures, and judicial decisions that cut deeply into constitutional freedoms. Those debacles are assets of the tradition, every bit as much as moments of judicial clarity.

Hollywood is currently celebrating one of those moments of clarity. In “The Post,” Steven Spielberg dramatizes the events leading up to the Supreme Court’s 1971 decision in the Pentagon Papers case that reaffirmed the strong presumption against prior restraint of the press under the First Amendment. That is indeed a precedent worth celebrating, but a robust sense of the tradition dictates that we also recognize that the essence of censorship in this society is not direct government suppression, but self-censorship. The reality is that individuals and news organizations routinely impose prior restraint on themselves.

Self-censorship rarely calls itself by its true name. It is readily disguised as editorial judgment or legal prudence. It is induced not only by restrictive laws but also by vague, overbroad legal formulations that leave speakers guessing about the boundaries of permissible expression and by negative examples, such as my recent skirmish over the Van Dyke subpoena. Its logic is especially compelling under conditions of economic distress, when many publications are one frivolous lawsuit away from closing down. And it often concedes more freedom than would, in the worst-case scenario, have been demanded.

Civil society solidarity animated by a confident sense of the First Amendment tradition can act as an antidote to self-censorship and a source of civic courage. The atomic particles constituting freedom (or its absence) in a society are choices made by individuals to speak or remain silent, to resist or acquiesce. Viewed in this light, there can be little doubt that the civil society response to my case improves the odds in the future that other journalists, when challenged, will find it easier to fully inhabit their job descriptions and that potential whistleblowers will be more likely to reach out to the press. Although the extent of this dynamic is impossible to gauge with any precision, it would be a mistake to discount it. If civic courage is a social value, rather than an individual endowment, then we have the capacity to generate it — to give each other heart for the intensifying struggle to preserve First Amendment freedoms that lies ahead. Speaking as a grateful beneficiary of that dynamic, I have no doubt of its reality and its power.

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