Duke Drops the Case Against Me

As some readers of Minding
the Campus know,
since last summer I’ve been embroiled in a legal controversy with Duke. The
battle ended last week, when, facing a potential defeat before the US. District
Court in Maine, Duke withdrew its subpoenas. The affair spoke volumes about the
indifference to First Amendment values at one of the nation’s leading research
universities.

As part of the civil suits filed by former members of the
Duke lacrosse team, I received four subpoenas from Duke, demanding among other
things my confidential communications with anyone Duke-affiliated, including my
e-mails with any Duke professor and all Duke alumni, relating to the “lacrosse
incident” or discussing in any way President Richard Brodhead’s “job performance.”
Duke did not subpoena Stuart Taylor, my co-author of Until Proven Innocent. As I’d come to learn, I was the only person
who functioned in a journalistic capacity during the lacrosse case subpoenaed
by Duke; the university even ignored its own campus newspaper, despite the fact
that former Chronicle reporter John
Taddei conducted the first on-the-record
interviews with any of the plaintiffs in the civil suit–interviews that
occurred before I launched my blog Durham-in-Wonderland.

An Unprecedented
Intrusion

It’s hardly unprecedented for one side in a lawsuit to seek
a third-party journalist’s files–but it is highly unusual for that party to be
a university, or for a major research university to go federal district court to
urge a weakening of First Amendment protections. A major research university
that deems itself “happy” with forcing researchers to turn over internal
correspondence in a civil suit to which the professor isn’t a party–as Duke’s lead
attorney described the university’s attitude to District Court judge Brock
Hornby–will have trouble attracting quality scholars, at least those whose
research in any way touches on controversial, contemporary matters. In short,
self-interest almost always leads universities to defend, rather than undermine,
First Amendment academic privileges.

I didn’t have any doubt about resisting Duke’s demands. My lacrosse-case
blog functioned effectively because I developed a reputation as someone sources
could trust. My transformation into a glorified research assistant for Duke
would have betrayed the trust that these sources placed in me. I also
understood that if I voluntarily turned over to Duke confidential, unpublished
exchanges with sources, the sources that I’ve developed at Minding the Campus would quickly dry up as well. With assistance
from the Reporters Committee for Freedom of the Press, I obtained excellent
representation from Bingham’s Patrick Strawbridge.

After I retained counsel, the university suddenly dropped
its demands for my exchanges with Duke administrators, faculty members, and
alumni. At no point in the case, in any letter, court filing, or hearing, did
any of Duke’s many attorneys ever provide a justification for subpoenaing all
of my correspondence with Duke professors about Brodhead’s “job performance.”
But it’s not hard to see why Duke sought this information, which would have
provided a road map for the Brodhead administration to retaliate against
whistle-blowing faculty members.

In a filing before a magistrate judge in Maine (where I
live), Duke narrowed its demands to confidential, unpublished exchanges with
sources discussing events from March 2006 (the lacrosse party and its
aftermath). The principle, however, remained the same–the university wanted to
pierce my journalistic privilege. Duke relied on some odd arguments in this
effort. The university’s lead attorney, for instance, indicated that I was “the
only other source” other than the players themselves for near-contemporaneous
(2006) statements from the lacrosse players–even though several journalists had
interviewed the players and, of course, many of them had spoken to friends or
roommates during spring 2006.

Duke’s litigators also vehemently denied that they used the
subpoena process to target me–but in one letter filed with the court, they all
but conceded the point. Unlike every other journalist who had interviewed
lacrosse players on the record, Duke observed, I “continue[d] to this day to blog about
the events underlying this litigation.” The message was clear: since I had kept
writing about the civil suits, and done so in a fashion critical of Duke’s
leadership, I would be targeted.

Defending the
First Amendment

In an curious ruling this past October, the magistrate judge
sided with Duke–giving Duke some, but not all, of what it wanted, blind to the
fact that giving Duke anything contravened First Amendment principles. I appealed
to the U.S. District Court in Maine, where the case was assigned to Judge
Hornby. My attorney penned an excellent brief (our most comprehensive survey of
the case) and a hard-hitting response to Duke’s defensive filing. (The reply caught
several errors of fact or creative use of ellipsis in the university’s filing–the
sort of thing that would be inexcusable in academic research.) Maine’s media
organizations–recognizing the threat that Duke’s conception of the First
Amendment posed to their reporters–also filed an amicus brief arguing that that
the magistrate judge’s order, and the Duke standard on which it relied, “dismisses the very real chilling
effect that a decision like this will have on the public’s receipt of
information in important controversies.”

Thus
emerged something extraordinary: a public acknowledgment that one of the
nation’s leading universities was trying to use the federal courts to weaken
the First Amendment protections upon which all Maine journalists depend. (All
filings in the case are
here.)

The hearing before Judge Hornby occurred on January 23. In
contrast to the magistrate judge, Judge Hornby appeared acutely interested in
the First Amendment ramifications of Duke’s claims. Noting Duke’s desire to
force a professor to turn over unpublished research material, the judge asked Duke’s
lead attorney, Tom Segars, if he actually was representing Duke as an
institution. (That’s when Segars said that he’d be “happy” to see Duke
professors live under the university’s proposed standard for me, a revelation
that I doubt the Brodhead administration has shared with any Duke faculty
members.) Judge Hornby also pressed Segars on Duke’s apparent indifference to
chilling academic freedom, wondering whether Duke’s proposed standard would
require any professor who planned to publish a book on a controversial topic to
retain counsel for subsequent third-party involvement in civil suits. And
Segars had a difficult time coming up with a benign reason why Duke had
subpoenaed only one author of a co-authored book, given that Duke had no idea
whether Stuart or I was the primary researcher for the sections of UPI in which the university claimed
interest.

As we awaited Hornby’s decision, one of the two groups of
lacrosse players settled their civil suit. Though the other group continued to
push forward, Duke decided to cut its losses, withdrawing the remaining two subpoenas
before Hornby had a chance to file his opinion.

Over a nine-month period, Duke filed six subpoenas, penned
three briefs and two letters, thrice sent teams of attorneys to Maine, and
hired an additional lawyer from Portland–all in order to gain access to
unpublished, confidential information of a professor at another institution. This
record exposes the hollowness of Duke’s commitment to any conception of academic
freedom.

(Photo: The accused Duke Lacrosse players. Credit: Duke Chronicle.)