Former Northwestern student journalist wins significant reporter's privilege victory

A former student journalist at Northwestern University's Medill School of Journalism does not have to reveal documents or give testimony about her investigative reporting that helped free a wrongfully convicted man from prison, a federal judge has ruled.

The ruling in favor of Carolyn Nielsen -- who now teaches journalism at Western Washington University in Bellingham -- is significant because it recognizes no distinction between the ability of a student journalist versus a professional journalist to claim the protection of the reporter's privilege.

The case involves a lawsuit by Thaddeus Jimenez, who was freed from prison in May 2009 -- after serving 16 years of a 45-year sentence -- with the help of a Northwestern University legal clinic and evidence gathered by Nielsen in her reporting. Jimenez filed a suit in December 2009 in federal court in Illinois, alleging that Chicago police violated his civil rights by manipulating evidence to incriminate him.

Attorneys for the City of Chicago subpoenaed Nielsen to obtain correspondence and records of phone conversations with Jimenez and to take her testimony. She responded by asserting the protection of the reporter's privilege, which enables journalists to keep their unpublished newsgathering materials confidential when faced with a demand in a legal proceeding.

In an August 18 order in the case of Jimenez v. City of Chicago, U.S. District Judge Marsha J. Pechman of the Western District of Washington ruled that the reporter's privilege applies to Nielsen even though she was working as a graduate student for a campus newsmagazine:

All of the documents were created with journalistic intent from inception, and culminated or are intended to culminate in publicly-consumable publication. Given that other circuits have not differentiated professional journalists from students in this context, this Court finds no reason to deny her standing simply because she was a student when some of the documents were created. Nielsen is eligible for journalist's privilege.
Having found that the privilege applies, the judge then found that the City's lawyers had failed to overcome the privilege by demonstrating that Nielsen's evidence was urgently needed and available nowhere else. Nielsen told Tacoma's News-Tribune that the ruling represents "a win for journalists who are still in the field and for the students I teach who hope to be journalists someday."

The Nielsen case is reminiscent of a still-ongoing dispute that also involves a reopened murder case and Northwestern student journalists. In that case, Chicago prosecutors are demanding to see all of the materials underlying Medill students' investigation into the murder conviction of Anthony McKinney. McKinney is seeking a new trial based on exculpatory evidence gathered by students working for the Medill Innocence Project as part of an investigative reporting class.

But the Jimenez ruling is not conclusive in the McKinney case, for several reasons. First, Judge Fechman was applying federal, not state, privilege law based on legal precedent that applies in the federal Ninth Circuit. Second, the Jimenez case is a civil case about Jimenez's entitlement to money damages, not a criminal case about a person's freedom.

Nielsen's case also highlights the need for Congress to put in place a nationally uniform federal privilege, so that journalists need not base their living arrangements on the whims of the federal courts. (Although courts and legislatures in every state except Wyoming have enacted a reporter's privilege, Congress has been unable to agree on the details of a shield law, and a Senate bill that appeared close to enactment in 2009 is languishing.)

As Judge Pechman noted in her ruling, Nielsen was covered by privilege because she had the good fortune to move to a jurisdiction (the Ninth Circuit) where judges have created a common-law reporter's shield in the absence of a federal statute. Had Nielsen remained in Illinois, she would have been subject to the law of the Seventh Circuit, which has refused to recognize any such privilege. It makes no sense that identical subpoenas issued to identical journalists in the same court case might be treated differently based on where the journalist happens to live, and Congress has the opportunity to correct the inequity and offer clarity to this unsettled area of the law.

Tagged: confidentiality, Reporter Shield