News organizations support Northwestern University student journalists

Professional groups weigh in on court battle for notes and grades.

By Jamie Loo, First Amendment reporter

January 11, 2010

CHICAGO — Local and national news organizations have filed a brief in court supporting student journalists at Northwestern University who are fighting state subpoenas for their notes and grades.

Eighteen news organizations including the Chicago Tribune, Chicago Sun-Times, the New York Times Company, Washington Post, Associated Press and Hearst Corporation submitted a “friend of the court” brief Monday which states that student journalists have the same rights as reporters at mainstream news organizations and are protected under the Illinois Reporter’s Act.

“Just as the analogous professional privileges extend to law and medical students when they perform supervised services, the reporter’s privilege extends to the actions of journalism students when they are engaged in supervised newsgathering activities, including researching a newsworthy story, interviewing sources and collecting information. These investigative skills are essential for any investigative reporter, and the State is misguided in attempting to distinguish ‘investigative’ work from the work of a journalist,” the brief said.

The subpoenas stem from a criminal case involving Anthony McKinney, who has been incarcerated since 1978 for murdering a security guard in Harvey, Ill. McKinney is believed to be innocent based on investigative work by nine teams of student journalists from the Medill Innocence Project at Northwestern University. The student journalists turned over their information to the university’s Center on Wrongful Convictions, a legal advocacy center separate from the Innocence Project. The center has taken the McKinney case.

The Innocence Project’s findings have been published on a Web site and mainstream news organizations such as the Tribune and Sun-Times have written stories about their research. Cook County state’s attorney Anita Alvarez issued subpoenas asking for all of the students’ notes, audio and videotaped interviews, course syllabus, grades and receipts claiming that the information is necessary for post-conviction proceedings. Northwestern University journalism professor David Protess, who teaches the investigative journalism class involved in the case, has maintained that the work product of student journalists is protected by the state shield law and has vowed to keep fighting the subpoenas.

Protess said Monday he is grateful for the support from the national and local media. He said it affirms what they’ve argued all along: student journalists are protected by reporter’s privilege.

In another twist in the case, McKinney’s attorney Karen Daniel told the court that she will be filing paper work in the post-conviction proceedings that could render the subpoenas moot. Protess said he doesn’t know what new information Daniel has but hopes that whatever it is exonerates McKinney.

Other news organizations that joined in the brief are the American Society of News Editors; Advance Publications, Inc.; Association of Alternative Newsweeklies; CBS Broadcasting Inc.; CBS Radio Inc.; Dow Jones & Company, Inc; Newsday LLC; News 12 networks, LLC; Newspaper Association of America; the Newspaper Guild; Radio Television Digital News Association; and the Reporters Committee for Freedom of the Press.

The Student Press Law Center, a non-profit student press advocacy organization based in Washington D.C., also submitted a brief in the case with the College Media Advisers, Inc., and the Association for Education in Journalism and Mass Communications. The next status hearing for the case is scheduled for February 10.

Who is a “reporter”?

The definition of who qualifies as a reporter under the Illinois Reporter’s Privilege Act has been at the heart of this case. The shield law protects reporters from revealing their sources and information in court except in circumstances where the information must stay secret under state or federal laws, or where the public interest outweighs the need for confidentiality.

The law defines a reporter as any person “regularly engaged in the business of collecting, writing, or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.”

A “news medium” is defined as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.”

Attorneys for Northwestern have argued that students’ grades have no relevance to McKinney’s post-conviction proceedings and that these records fall under the Federal Educational Rights and Privacy Act (FERPA). The students conduct their work with the expectation that the results will be published on the Internet and possibly in conjunction with professional journalists. Protess has written articles on the McKinney case which were published on the Medill Innocence Project’s Web site and according to their interpretation, the law doesn’t require people to author the articles themselves. Mainstream news organizations also used the Innocence Project’s research in articles.

In the court documents, the attorneys cite other criminal cases where the shield law was used to protect people and groups who are not traditionally categorized as news gathering organizations. In the People v. Degorski, which most people know as the Brown’s Chicken Massacre case, a non-partisan watchdog group, the Better Government Association, investigated and published a report. The judge in the case ruled that the BGA qualified under the Reporter’s Act. Protecting the information submitted by the students encourages the free flow of information and allows the Innocence Project to continue to serve the public through their work. Attorneys also noted that Protess is willing to give the state records of interviews, videotapes and audio tapes that have already been published.

The state has argued that students were acting as investigators and not reporters when they gathered information on the McKinney case. The students’ purpose was to collect information and evidence for exoneration, not for reporting the news. Their findings didn’t generate a news report and none of the students subpoenaed wrote a story about the case. Even if reporter’s privilege applied in the case, the state argues that the students waived this right by turning over their information to McKinney’s attorneys before it was published. It was the students who brought the new information to the court’s attention and the state should have the chance “to fully evaluate all of the evidence submitted on a petition for post-conviction relief,” according to court documents. The state feels the subpoenas for grades do not violate FERPA law. Grades and course material are regularly sought for other government purposes and parties where the disclosure outweighs student privacy rights, according to the state’s case.