PORTLAND, Maine — A Scarborough author is being unfairly targeted by Duke University in an ongoing legal case because of his critical writings about school officials, his attorney told the court in recent filings.
Dr. Robert David “KC” Johnson is objecting in U.S. District Court in Portland to a decision by Magistrate Judge John H. Rich III, who last month recommended in favor of a Duke motion to compel the author to turn over records of his communications with former Blue Devils lacrosse players and their lawyers.
A coalition of media organizations, including the Bangor Daily News, is preparing to support Johnson’s objection on the grounds that forcing the author to submit to legal interviews and give up his communications with sources could set a dangerous precedent that threatens journalists’ constitutional protections.
Sigmund Schutz, an attorney with the Portland law firm Preti Flaherty, said Friday he will file an amicus brief backing Johnson’s objection on behalf of the Maine Press Association, Bangor Daily News, Portland Press Herald, Maine Association of Broadcasters and the Reporters Committee for Freedom of the Press.
In the spring of 2006, Duke lacrosse players David Evans, Collin Finnerty and Reade Seligmann were charged with forcible rape and kidnapping after local stripper Crystal Gail Mangum said she was attacked while performing at a March party at a house shared by two team captains.
The university canceled the remainder of the lacrosse season and the charged players were the subjects of numerous media reports. But a year later, in April 2007, North Carolina Attorney General Roy Cooper dropped all charges against the players after inconsistencies arose in Mangum’s story and the players produced alibis proving they did not commit the crimes.
In what became a black-eye case nationwide for Duke as well as local police, county District Attorney Mike Nifong was disbarred for his handling of the case and found guilty of criminal contempt.
Johnson, a Brooklyn College professor and author who lives in Scarborough, launched a website defending the players and co-authored the 2007 book “Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case.”
Now being sued on two fronts by former players and their parents, Duke is seeking records of Johnson’s communications with the sources for his book. But Johnson’s attorney argued the author is being singled out by the university because of his writings.
“[T]his Court can fairly draw the inference that Dr. Johnson’s ongoing coverage, and his critical analysis in the past, has motivated Duke’s efforts to focus their third-party discovery on him,” wrote Johnson’s attorney, the Portland-based Patrick Strawbridge, in his District Court objection. “What else can reasonably explain Duke’s decision to forego subpoenaing other authors or journalists who had extensive contact with the plaintiffs in this case and their attorneys, including Dr. Johnson’s co-author, Stuart Taylor?
“Duke has not even attempted to subpoena the interview notes and correspondence of its own student newspaper, the Duke Chronicle, which in July 2006 was the first media outlet to interview the lacrosse players about the events in question,” he continued. “There is a reason why Duke has ignored allegedly responsive materials collected by reporters on its own campus, but has served a combined six subpoenas on Dr. Johnson.”
Additionally, Johnson’s attorney claims Duke’s motion to compel the author to submit to further deposition and turn over his communications with players and their lawyers breaches the freedom of the press included in the First Amendment of the U.S. Constitution.
“Dr. Johnson does feel that if the decision stands, it will be very difficult for him to continue reporting on the case,” Strawbridge said Friday. “ He already has legitimate concerns that people will be far more reluctant to talk to him now that Duke University has gained access to his email inbox.”
Schutz, representing the BDN and other Maine media organizations, reinforced the First Amendment argument Friday.
“It’s the obligation of the press … to gather and disseminate information, and that’s a First Amendment protected activity,” Schutz said. “We don’t want to set a precedent in which any time a reporter talks to a party in a lawsuit, that reporter is fair game to be issued a subpoena. We can’t have attorneys asking parties in their lawsuits, ‘Have you ever spoken to a reporter,’ and then going out and filing a subpoena to get all of that reporter’s notebooks, audio recorders and files. … A high threshold has to be met before reporter can be forced to submit testimony, otherwise, you’re really … trampling those [constitutional] rights.”
Duke attorneys, led by Thomas Segars of the North Carolina firm Ellis & Winters, were able to convince Judge Rich that they were not infringing on constitutional protections afforded journalists and their confidential sources, in part, because Johnson named those sources openly in his book.
Segars did not immediately return a call seeking comment Friday.
During the course of the case, university attorneys argued that the players now suing Duke have refused to discuss a number of issues relevant to the ongoing case — such as their reason for canceling a meeting with Durham, N.C., police in March 2006 or how they decided to compile student identification card usage data to build a digital alibi — standing behind the protection of attorney-client privilege.
Therefore, Duke officials say they must be able to review Johnson’s communications with those players to determine if the players or their attorneys shared the sensitive information with the author, an unprivileged third party who wrote about those issues in his book. If so, Duke attorneys argue, those players voluntarily broke the attorney-client privilege protection.
But Schutz said Friday the university can obtain the same information it would get from Johnson’s communications with his sources from other places, including from the parties in the ongoing court cases in question. He said Duke should be exerting its legal efforts to acquire the necessary information from those parties, if the school believes the information is essential to its case, instead of from a third-party journalist.