Six years ago, Duke University suffered a high-profile humiliation from which it is still struggling to recover. Students on Duke’s lacrosse team were accused of a brutal sexual assault on a local stripper who had been hired to perform at a party.
The charges were false. But in the interval between the initial headlines and the students’ eventual vindication, credulous faculty and others in the university community applied a presumption of guilt, denouncing the students as rapists.
A university steeped in traditions of free speech and the pursuit of truth was exposed as blinded by its own dogma, unwilling to acknowledge inconvenient facts that undercut the credibility of the students’ accuser, and indifferent to the students’ civil liberties.
Given this sordid history, one would expect Duke to be taking steps to demonstrate its renewed commitment to due process and first amendment principles. On the contrary, the university, which has been sued by the former lacrosse team players and their parents, recently served a subpoena on Robert “KC” Johnson, an outspoken critic of Duke’s handling of the (non-)rape scandal and co-author of the leading book on the subject.
Johnson, a professor at Brooklyn College and the City University of New York, is co-author (with journalist and legal scholar Stuart Taylor) of “Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case.” (Disclosure: Taylor is a friend of mine). Duke’s subpoena demands Johnson’s disclosure of confidential information he received from sources for the book, including the former Duke students and their lawyers.
Duke’s subpoena, which is being contested in federal district court in Maine, is an offense to journalistic independence and academic freedom. Historians and journalists can’t perform their truth-telling function if their sources have reason to fear that their role, and the information they agree to provide, will later be exposed and scrutinized in court.
This is obviously true if the sources’ identity or information are confidential. This is also true in the fairly common situation in which a source, although named in a book as a source for one statement or fact, provides additional information to the authors, on a confidential basis, for still other statements or facts that are published unattributed. The process of conducting original research for a journalistic or historical work is crippled if lawyers are free to depose authors about these matters.
The legal privilege protecting the work of historians and journalists is not absolute, to be sure. The university’s claim to the subpoenaed information would be more convincing if Duke had exhausted all alternative sources and the information were truly essential to its ability to defend itself in litigation. But Duke hasn’t come close to meeting these standards.
Duke’s leaders should think hard about how much the school is willing to lose. If they insist on enforcing their subpoena, what will they say the next time a Duke professor receives an intrusive court order to turn over confidential research or communications?
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Peter Scheer is executive director of the First Amendment Coalition, a nonprofit organization based in California. This article does not necessarily reflect the views of the Coalition‘s Board of Directors.
