Two business days before Unite the Right organizer Jason Kessler was scheduled to stand trial on a felony perjury charge March 20 in Albemarle Circuit Court, C-VILLE Weekly reporter Samantha Baars was in Charlottesville General District Court, where a deputy handed her a subpoena to appear as a witness for Kessler.
Aside from First Amendment freedom-of-the-press issues, the subpoena posed another problem for the paper’s two-person news team: If Baars were sequestered as a witness, C-VILLE would have no one available to cover a case with considerable local interest.
Local attorneys James West and Josh Wheeler volunteered to challenge the subpoena and, with the support of the Rutherford Institute, prepared a motion to quash, which West filed just hours before the trial was scheduled to begin.
West says a federal court has identified reasons subpoenaing journalists is a bad idea, including the potential threat of judicial and administrative interference with news gathering. “If reporters are regularly subjected to open-ended subpoenas, they would be thinking of that in their reporting,” he says. “It would appear to turn reporters into an investigative arm of government or private parties.”
And as in C-VILLE’s case, it places a major burden on the limited resources of a small organization, says West. “You could be intentionally harassed. If a reporter has done a long series of articles that were not particularly flattering, [the subject] could subpoena the reporter so she couldn’t cover the trial.”
Kessler attorney Mike Hallahan told Baars, who had no first-hand knowledge of Kessler’s sworn statement to a magistrate that he was assaulted, which was the basis of the perjury charge, he was subpoenaing her for an October 10 article in which she’d interviewed Jay Taylor, the man Kessler claimed assaulted him.
In court, Hallahan objected to the motion to quash and initially to saying why he wanted Baars as a witness. “He wanted her as an impeachment witness for Taylor,” says West. C-VILLE was unable to reach Hallahan.
Judge Cheryl Higgins granted C-VILLE’s motion. “She was proactive in recognizing journalistic privilege,” says West.
Reporters in Charlottesville are not often subpoenaed to testify in court, but it’s happened before. A special prosecutor called NBC29’s Henry Graff as a witness in February for a case against Jeff Winder for assaulting Kessler August 13.
In 2007, Charlottesville prosecutor Claude Worrell, now a juvenile court judge, subpoenaed former C-VILLE editor Courteney Stuart, then a reporter for the Hook, to testify in a public drunkenness case.
Stuart appeared before Judge William Barkley with a motion to quash. “I cover crime,” she told the judge. “This is drunk in public—a minor crime. This week I’m also covering a capital murder. Am I to be called to testify in every crime I cover?”
Barkley denied the motion. At trial, Rutherford attorneys represented Stuart, but the defendants agreed to stipulate her story was accurate and released her as a witness. At that time, Worrell said he would subpoena reporters in the future because their role in a free press “does not mean they can opt out of their responsibility as citizens to provide information.”
Such a move “makes reporters an investigative tool of the court or government,” says Rutherford president John Whitehead. “Not a good idea.” It also compromises journalistic integrity, particularly in instances in which a reporter has promised confidentiality to a source, he says.
“A subpoena can be used to intimidate reporters and lower their profile,” says Whitehead. “It threatens freedom of the press.”
Correction: Kessler claimed Taylor grabbed his arm and got in his face, but not that Taylor slugged him as originally reported.