Libel

Court Allows Subpoena of Media for Unpublished but Nonconfidential Interview Outtakes

An interesting illustration of the qualified privilege that many courts recognize in such cases.

|The Volokh Conspiracy |

In Alexis v. Kamras (E.D. Va. May 22) (Robert E. Payne, J.), "Betty Alexis, Stephanie Burgess, Chireda Cotman, and Troy Johnson … sued [Richmond Public Schools and Superintendent] Jason Kamras" for libel over Kamras's public statements in the wake of a test cheating scandals at George Washington Carver Elementary School.

"Alexis, Cotman, and Johnson acted as proctors during that SOL testing," and they claim that when "reported irregularities" were investigated, Kamras and the School Board wrongly accused them of being involved:

Kamras and the Richmond School Board allegedly launched a "media campaign designed to lessen the public blow from the [official Virginia Department of Education report on the irregularities] and the cheating implications that flowed from it." …

On the day that VDOE issued its Report, Kamras met with local reporters and read "a prepared statement about the Report in which he essentially vouched in full for the Report." Kamras also published a statement on the RPS's website largely echoing the statement that he had made to local reporters. Additionally, on August 1, 2018, Kamras held a public meeting at Carver and, beforehand, gave a press conference at the school. In that press conference, he allegedly said:

"I want to reiterate that what happened at Carver is unconscionable. The adults who orchestrated this systemic cheating violated a sacred trust with our students and our families. Moreover, pending State approval, I can confirm that none of these individuals will hold a teaching or administrative license in the Commonwealth."

On August 6, 2018, the School Board "voted to approve the resignations of the former Carver principal and five of its teachers—including Alexis and Cotman]." On the same day, Kamras gave an interview to Justin Mattingly …, a reporter at the Richmond Times-Dispatch. That interview allegedly included information about the Plaintiffs, Carver and VDOE's Report. The Richmond-Times Dispatch published an article about the August 6, 2018 School Board meeting, which included statements that Kamras allegedly made during his interview with Mattingly. Specifically, the article attributed the following statement to Kamras: "'The actions were a betrayal of trust, so they can't work for RPS.'" …

In their respective [Complaints], Plaintiffs state that they did not provide any inappropriate assistance to any of the students at Carver….

Plaintiffs demanded that the Times-Dispatch publisher produce the recording of the Kamras interview; the Times-Dispatch refused, citing Fourth Circuit caselaw that provided a limited testimonial privilege to media outlets, but the court held for the plaintiffs:

In civil proceedings, "the First Amendment affords a journalist a qualified privilege." This privilege requires a court to balance a party's interest in obtaining the information at issue with society's interest in ensuring the free flow of information through the press. LaRouche v. Nat'1 Broad. Co. (4th Cir. 1986).

The Fourth Circuit has adopted a three-part test to guide the balancing process, looking to: "(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information." … "[A] reporter holds a heightened interest in maintaining the confidences of her sources, but even revealing non-confidential materials burdens the press." "Despite this burden, courts consider the reporter's interest diminished in the absence of both confidentiality and vexation.

The Plaintiffs' subpoena does not implicate the confidentiality of the reporter's source because the source, Kamras, is revealed in the published article. Here, as discussed later, there is also no real burden placed on BH Media because BH Media need only produce a copy of the recorded interview. And, BH Media does not claim vexation….

[1.] Relevance of the Recording

… What Kamras said to Mattingly during the interview is certainly proof of Kamras' state of mind, an element that lies at the core of the liability and damage issues of Plaintiffs' defamation claims. Additionally, as Plaintiffs assert, and given [Kamras'] highly critical statement published in the Richmond-Times Dispatch article and elsewhere, it is plausible to believe that Kamras published other defamatory statements to Mattingly during the course of his interview…..

[2.] Availability of the Information From Other Sources

… BH Media argues that the Plaintiff must "attempt to obtain information equivalent to the contents of the Newspaper's August 6 interview" from alternative sources, and that "Plaintiff cannot make this showing because [they have] not taken Superintendent Kamras' deposition, and nothing precludes [them] from doing so." … But, even if Kamras could testify as to his recollection of the interview, that would not be equivalent to the recording of the interview itself. As the Gilbertson court stated, "Although the defendant's memory could provide an alternative source for the material, his testimony will surely face reliability and credibility attacks at trial."

And, it is beyond dispute that the Richmond-Times Dispatch "is the sole entity in possession of contemporaneous statements made by Kamras about Carver, the Report, and issues related thereto," and the interview cannot be obtained from any other source….

[3.] Compelling Interest in the Information Sought

… [T]he recording can provide proof of Kamras' state of mind and the reasoning for the quoted part of the interview….

[4.] Burden of Producing the Recording on the Newspaper

… While the Court acknowledges that requiring media organizations to produce copious amounts of information in response to every subpoena would be "potentially stifling," producing the single recording at issue can hardly be said to be a burdensome task. Nor has BH Media shown a burden in producing one recording….

Finally, Mattingly and BH Media have a significantly diminished interest in the recording at issue because there is no need to protect Kamras as a confidential source and the subpoena "does not harass the reporter or enlist her as an investigative arm of the litigant. Rather, the subpoena seeks the entirety of what Kamras said. In other words, the subpoena also seeks to capture the outtakes of the interview, … Without any evidence of confidentiality of vexation, the Court finds that the interest in disclosure outweighs the Reporter's interest."

 

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  1. Additionally, as Plaintiffs assert, and given [Kamras’] highly critical statement published in the Richmond-Times Dispatch article and elsewhere, it is plausible to believe that Kamras published other defamatory statements to Mattingly during the course of his interview…..

    Is that second use of, “published,” one with a different (and maybe legal–technical) meaning than the first use? If so, it would be helpful to clarify that for us laymen.

    It is particularly confusing if “published,” is being used in the first instance in its usual meaning, but used differently in the second instance in a near-opposite meaning. Presumably, a subpoena for disclosure by media is seeking information the media seek to keep confidential. And if all or part of a private interview with media was based on promised confidentiality, it seems burdensome to press freedom to count that as “publication” by the party who gave the information in reliance on confidentiality.

    1. There’s no way to avoid this problem, because “published” is a term of art in defamation law and simply refers to the statement being made to another person, whether orally or in writing. And a “republication” (such as a statement first “published” by a writer to an editor, and then “published” again by the editor to the public) is also a form of “publication”.

      So both usages are correct in the context of defamation law.

  2. Also, the reasoning of the Court seems heedless that the burden on the media is in large part the cost of yielding to force on a question of promised confidentiality. Media protect their power to investigate news by keeping promises of confidentiality sacrosanct and unconditional, so that future sources can see that such promises can be relied upon. Sometimes reporters have to go for jail for that. It can be helpful if courts understand the implications, and do not too much punish media figures who stand on behalf of protecting an indispensable constitutional principle.

    1. Did you even bother to read the article? There were no promises of confidentiality in this case. The source was disclosed to all the world in the final article.

      While there is value in defending principles, the court explicitly noted that that particular principle does not apply to this specific case.

      1. Rossami, reporters do not merely protect confidentiality of source identities. They also insist on confidentiality for their unpublished notes, with good reason. To justify reliance on a source, reporters often demand background information. That includes information that the source will not disclose without assurance that it will not be published. The ability to do that is critical for vetting sources.

        The OP seems to present the court as silent on that aspect, except for this, “it is plausible to believe that Kamras published other defamatory statements to Mattingly during the course of his interview…..” That strikes me as speculation of an unlimited kind, which would authorize ransacking any journalistic notes whatever.

        1. The court system knows what journalists insist on. But there are competing considerations here, as courts also insist that every person with relevant evidence respond to a proper subpoena.

          The qualified privilege balances both interests.

          1. Right. But the problem is, neither interest is especially amenable to balance.

            I will let lawyers speak for the legal side. On the journalistic side, defense of confidentiality must be near-fanatical in each case, lest trust in confidentiality go away everywhere. There is little room for compromising confidentiality just a little bit, on this court’s order, this one time. Too many potential confidential sources would read that as open-ended personal vulnerability, and clam up. Down that road you get a press which publishes advertising, public service announcements, and little else.

            I have long thought the issues raised should never be resolved, and maybe not even considered, except to set them aside. Let the courts demand their legal prerogatives. Let the journalists defy them, and insist on confidentiality. Then punish the journalists for defiance. But never with draconian punishments, which leave no practical course but compliance.

            The imperatives on either side are constitutional, extreme on both sides, and nearly mutually exclusive. I suggest that means preservation of both contested constitutional values requires that neither side ever win.

            1. I think the qualified privilege balances it fairly well in civil cases. (In criminal cases, the federal rule is there’s no shield at all, which also seems defensible, at least with respect to serious crimes.)

              The civil rule generally works as follows:

              1. You can’t ever get the identity of an unnamed source. That’s where journalistic confidentiality is at its maximum.

              2. You can’t normally get notes and unpublished material that would not reveal a journalist’s source.

              3. But, you can get the material in (2) if the material is centrally relevant to a case and you can’t get it anywhere else.

              And this isn’t a difficult standard to apply- it is exactly the same standard as lawyers have to comply with on work product claims.

              I will say this. I think journalists tend to overstate the value of confidentiality. First of all, the vast majority of unnamed source journalism is complete crap. Yes, you can talk about Watergate, but most of the unnamed source journalism is in the areas of celebrity gossip and sources hiding behind anonymity to trash people.

              And second, in the situations where anonymity is valuable, I don’t think the sources care about much about journalistic work product that doesn’t reveal their identity. Deep Throat wasn’t worried that some of Woodward’s and Bernstein’s story drafts were going to get subpoenaed.

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