The First Amendment Transcends The Law And Gives Us Strength In Dark Times

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BY: Jamie Kalven 02.08.18

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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.