Judith Davidoff
Immediately after Judge Reynolds’ ruling on Sept. 9, Dylan Brogan, right, and two other local journalists were served subpoenas.
On June 23, 2020, Isthmus reporter Dylan Brogan headed down to the Dane County Courthouse to cover the Black Lives Matter protests. Activists had been gathering nightly in downtown Madison and in cities across the United States since George Floyd was killed by a Minneapolis police officer in late May.
Sparked by the arrest earlier that day of Yeshua Musa outside of The Coopers Tavern, the June 23 protest turned violent: Two statues on the Capitol grounds were razed, state Sen. Tim Carpenter (D-Milwaukee) was attacked for taking a video of protesters, and someone tried to start a fire inside the City County Building.
Brogan was there for it all, observing, talking to sources, taking photos and video, and tweeting throughout the night — doing what any good reporter would do. He persevered even as protesters hounded him and other reporters, trying to prevent any video or photo coverage of the events; their fear was that this recorded documentation could be — and would be — used by the state against them.
A police detective contacted Brogan the next day about the attack on Carpenter; Brogan told the detective that all he knew was in his June 24 story and that he was not able to identify those who had attacked Carpenter.
More than a year later, on Aug. 9, 2021, Brogan received two subpoenas mailed to his home address, ordering him to “testify or to give evidence as a witness” in the upcoming trials of Samantha Hamer and Kerida O’Reilly, who were arrested July 27, 2020, on charges of felony substantial battery in the assault on Carpenter.
Brogan was not initially alarmed: “I thought this would be rectified once I explained I was at the protest in my professional capacity as a journalist and that I couldn’t identify these defendants.”
But the prosecutor, Dane County Assistant District Attorney Paul Humphrey, refused to withdraw the subpoena.
Humphrey also subpoenaed two other reporters to testify at the trial of Hamer and O’Reilly: Chali Pittman, news director of WORT-FM, and Lance Veeser, a reporter for WKOW. The two retained attorney James Friedman to fight the subpoena and we all agreed to share the costs of filing a motion to quash the subpoenas, which Friedman also argued were incorrectly issued without a court order. A hearing was scheduled before Dane County Judge Josann Reynolds on Sept. 9.
At the hearing Friedman argued that the journalists should not be compelled to testify because Wisconsin’s shield law bars courts from issuing subpoenas to journalists unless four conditions are met, including that the information provided by the journalists “is not obtainable from any alternative source.”
Wisconsin’s shield law, passed in 2010, protects journalists from being forced to disclose confidential source information and also provides a high bar for compelling a journalist through a subpoena to testify as a witness.
“Here there are countless other sources from whom that information is obtainable,” Friedman told the court. “It doesn’t matter if the state hasn’t obtained it yet, it’s obtainable. For example, Sen. Carpenter’s own testimony, the reported news from my clients and other news outlets. There are videos of the crime, witness statements from my clients, and others. And then of course the dozens, if not hundreds, of people who were at the same scene that my clients were at — the scene of the alleged crime — and who witnessed precisely the same events that my clients may have witnessed.
“This case is uniquely inappropriate,” he added, “for breaching the reporter’s privilege because the underlying events were witnessed by so many non-journalists.”
Humphrey countered that the state did not have and could not find other witnesses able to provide eyewitness accounts; he said the public interest in securing a fair trial for Carpenter and the defendants outweighed any immunity journalists might have from being subpoenaed.
Defense attorney Jessa Nicholson, who is representing O’Reilly and was sitting in the courtroom, asked for permission to speak “to add a brief factual point to the record.” She informed the court that she had been able to find other witnesses.
But Reynolds, in her questioning, revealed that she has little understanding of how journalists do their work and what is actually involved in news gathering.
“Mr. Friedman, if a reporter is interviewing a witness, that is clearly an investigative function of the reporter’s job and isn’t it clearly distinct from being at the scene seeing the actual event, being a material witness as opposed to investigating, locating confidential sources, et cetera?” she asked.
No, Friedman responded, arguing that the shield law makes no such distinction. “This happens all the time. They were investigating. They were there and they witnessed things because they were reporting on what was going on. They happened to see…a potential crime, an alleged crime committed. Again, it happens all the time if they get to the scene of a breaking news story promptly. They did. They got there and they saw things unfolding. It doesn’t change the fact that the privilege applies.”
Reynolds then offered up a novel — and inaccurate — definition for investigative reporting in her ruling.
“Nobody is asking for these witnesses to identify any confidential informants or any confidential source. Hypothetically, I believe that if perhaps the reporters saw this incident, followed Ms. Hamer or Ms. O’Reilly and got a license plate, got their address, worked to identify them, that would be investigative reporting. That would be part of their job and that would not be subject to a subpoena to testify. This is not work product. These are material witnesses, and I don’t believe that the evidence that the state is seeking is work product or the result of information gathering. They were at a place at a time when a crime allegedly occurred and the state, according to Mr. Humphrey’s representation, has only these witnesses.”
Reynolds ruled that Humphrey could issue his subpoenas and the reporters were served in the courtroom. A few weeks later we moved for reconsideration of the Sept. 9 ruling, arguing that Reynolds had made “manifest errors of law.”
At that Sept. 27 hearing, Friedman once again argued that the state did not satisfy the conditions of Wisconsin’s shield law for subpoenaing journalists, adding that Reynolds “took too narrow a view of how journalists do their jobs.” He also argued that Veeser should not be forced to testify because he was not even at the scene of the alleged attack; he called 911 when Carpenter collapsed after leaving the scene.
But Reynolds stood by her ruling. The trial for O’Reilly is set to start Oct. 18. Hamer, at the Sept. 27 hearing, pleaded no contest to a reduced charge of disorderly conduct, essentially receiving a ticket rather than a criminal conviction.
There is an old expression and it harks back to the days when print newspapers reached vast audiences and could also spend big bucks fighting lawsuits in pursuit of freedom of the press: “Don’t pick a fight with someone who buys ink by the barrel.” But those days are long gone.
Isthmus is a tiny nonprofit that has already spent more than $1,000 fighting the subpoena. And while we have media liability insurance with subpoena coverage, our insurance company is now fighting us over whether that coverage applies in this case.
For now, we don’t have the funds to mount an appeal. We are still hoping that O’Reilly might settle but if she doesn’t Brogan will be forced to testify at the trial.
What are the long-term impacts? Reynolds’ ruling is sure to have a chilling effect on a journalist’s willingness to talk to police officers if called on to provide information. Why would a journalist do so if a sitting judge has shown her willingness to ignore the protections of the state’s shield law?
It will likely also widen the sizable trust gap that exists between the press and some social justice activists and make it more difficult — and dangerous — for reporters to cover protests. Brogan was shoved and had his cell phone taken and smashed by protesters when he was just trying to do his job. Reynolds’ ruling could not fit more neatly into the narrative circulating among protesters at the recent BLM protests — that reporters should be barred from covering protests and taking photos or videos so that their work product does not end up in the hands of prosecutors.
Judge Josann Reynolds has put local journalists at risk, through her disregard for the law and the facts in this case. Her decision, however, is not precedent-setting. We hope that future courts better understand the role of journalists, protections provided by the shield law, and the importance of freedom of the press.
