Free press being attacked in Kansas

Dodge City Daily Globe reporter Claire O’Brien is under attack, along with the freedoms the First Amendment of the U.S. Constitution afford journalists.

On Oct. 31 13, O’Brien published a story in which she “interviewed murder suspect Samuel Bonilla, who is charged with killing two men on Labor Day,” according to The Reporters Committee for Freedom of the Press.

The Topeka Capital-Journal also reported that she also interviewed a bail bondswoman named Rebecca Escalante and an unnamed source that said “the man whom Bonilla wounded ‘has a base of support that is well-known for its anti-Hispanic beliefs.’ The same source said he had seen evidence that the wounded man’s support base ‘has a supply of semi-automatic weapons.'”

It was this anonymous source that got the attention of Ford County Attorney Terry Malone. He wanted to know who O’Brien spoke with and what other information she might have in her unpublished notes that needed to be included in the case against Bonilla.

Some states in the United States have reporter shield laws that protect journalists (a national version is in the talks), but Kansas currently has no protection for reporters guaranteeing them “the right to refuse to testify as to information and/or sources of information obtained during the newsgathering and dissemination process.”

Malone made it clear he doesn’t think reporters should have that type of protection.

“In a criminal investigation, if the information being sought is relevant, we believe there is no privilege or immunity for the reporter to keep information secret,” Malone said in the Capital-Journal report.

O’Brien, rightfully so, disagrees.

“The protection of the press isn’t for reporters, it’s for the people,” she said in the Capital-Journal report.

See, if O’Brien were to simply turn over the information, she would alienate the source in question and destroy any future credibility she might have with sources. If she had promised anonymity, she had to keep her word or risk severing lines of communications with other sources who provide sensitive information.

Not turning it over, though, would mean jail time.

It comes down to a matter of personal ethics and morals, and I know how I would react. I’d offer my wrists up for handcuffs. I wouldn’t go against my journalistic integrity and give up an anonymous source, which I have used such sources before.

I would go to jail with peace of mind, knowing what I was doing was right and just.

What is O’Brien going to do? So far she is staying strong and refusing to reveal her source.

Well, The First Amendment Center said in a report O’Brien and The Globe were subpoena by Malone “seeking details about an Oct. 7 interview with Bonilla.”

On Dec. 9, State District Judge Daniel Love ruled that O’Brien and the Globe “must testify at an inquisition about a story she wrote about murder suspect Samuel Bonilla.”

Generally speaking, both state and federal courts must balance the need for the information and the need of the reporter to protect sources.

So what was Love’s reason for mandating the testimonies?

“In this case, when applying the balancing test, it is clear to the court that the need for this information outweighs the news reporter’s privilege of confidentiality,” Love wrote, as published by the First Amendment Center.

But, it seems the need to protect the sources might have been even greater than anyone realized, especially since the man Bonilla wounded reportedly had a heavily armed support base and an alleged hatred for Hispanics.

In that Oct. 13 article, O’Brien reported “claims from Escalante that she would have bonded Bonilla out if she and others didn’t believe he would be in danger.”

So which need is greater? Saving someone’s life or letting a county attorney have his way.

The problem the Globe and O’Brien were going to face was case law, specifically the 1972 U.S. Supreme Court case of Branzburg v. Hayes. This case states that “requiring reporters to disclose confidential information to grand juries served a ‘compelling’ and ‘paramount’ state interest and did not violate the First Amendment,” according to Oyez.org. This decision was made with a vote of five to four.

Such a legal precedent doesn’t bode well for O’Brien and the Globe. Luckily the Kansas Supreme Court did approve a temporary stay of the subpoena. Editor and Publisher reported this on Jan. 20 as a follow-up to a Jan. 19 report about the situation.

However, the stay of the testimony didn’t last forever. It has since been lifted.

The Globe itself reported Thursday O’Brien’s day in court was Wednesday. She has since been held in contempt for “failing to appear at an inquisition hearing,” the report said.

District Judge Love is fining O’Brien $1,000 every day until she testifies.

So far, corporate owner, GateHouse Media, and Globe publisher Darrel Adams are standing behind O’Brien. According to the Capital-Journal report, it will probably cost the company upwards of $50,000 to defend this case to its end.

It is money well spent because what is being done to O’Brien is appalling. The Ford County legal system is trampling on the rights of the free press.

To some it might seem the law is on the side of the judicial system in Ford County, especially when you take into account the case law they are citing, but they are over looking something. It is a bit of information that is incredibly important, and, as the Capital-Journal reported, “the Globe points to Justice Lewis Powell’s concurring opinion in the Branzburg case as proof that some protection for reporters exists. While agreeing with the majority that an absolute privilege didn’t exist, Powell wrote that reporters weren’t without constitutional rights to protect their sources . . . Courts, Powell wrote, should strike ‘a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.'”

Even that case gives journalists leeway, and “battles over this issue have often used a balancing test enumerate in another U.S. Supreme Court case, Silkwood v. Kerr-McGee Corp. That test is whether the reporter’s information is material and relevant to the criminal case, can’t be obtained by alternate means and is crucial for prosecutors or defense attorneys,” as the Capital-Journal said.

The information O’Brien has isn’t crucial for the case, and therefore this attempted desecration of the First Amendment should be ceased immediately.

By all accounts, the information she has refers to another group of people, not the case in which someone was allegedly murdered and another wounded.

That’s where the focus needs to be.

Simply put, O’Brien is being bullied buy a county attorney who is embarrassed that she was able to get people to talk to her that he couldn’t, even though they had no direct bearing on the case.

This is a clear case why Kansas needs Shield Laws just as much as a national version must be passed.

Discussing such a topic, the Capital-Journal reported, “Senate Majority Leader Derek Schmidt, R-Independence, has co-sponsored a bill that would apply a three-prong test. Under the proposal, prosecutors or defense attorneys can compel reporters’ testimony if the information sought is material and relevant to the case, can’t be obtained by alternate means and is ‘necessary to secure the interests of justice’ . . . Schmidt, a former journalist who is running for attorney general in 2010, said if the government can compel testimony or production of unpublished notes with ‘a fairly low standard,’ then reporters become agents of the government or will be viewed as such by sources . . . ‘The consequence is that those with knowledge of public value will be less likely to share it with the media and it won’t get into the public discussion,’ he said.”

Kansas needs this. So does the country.

And yet there are people in the state of Kansas and within our national boarders that don’t see the danger of chilling free speech and making it difficult for journalists to do their jobs because people are scared of telling sensitive information due to the fact the probably won’t get granted safety in the form of anonymity. This will result in important stories never seeing the light of day, and the rest of the world will continue to be unaware of situations that are actually quite related to their everyday lives.

It boggles my mind.

I fully support O’Brien, and I hope she never backs down. I’m proud that she has an ethical backbone and isn’t cave to pressures of a flaccid crusade to dig into information that clearly isn’t pertinent to the murder case.

The law might be the law, but that doesn’t mean it is always right. In this case, the courts have erred. They can right the wrong by simply dropping the subpoena and the contempt fines instead of trying to show their might and punish someone for disobeying an order they made in blunder.

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About toddvogts 749 Articles
My name is Todd Vogts. I am an assistant professor of media. I like the color green, riding my motorcycle, and being with my family and friends. A good book is a perfect companion for me any time, and I'm a published author and journalist. Visit my website at www.toddvogts.com and follow me on Twitter at www.twitter.com/toddvogts.

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