Repugnant To The Constitution

by Matt Saldaña
April 18, 2007

Brian Johnson subpoena (PDF, 192 KB)

On Thursday, April 12, former Mayor Dale Danks, who is an attorney for Mayor Frank Melton, issued a subpoena to Jackson Free Press Managing Editor Brian Johnson ordering him to appear at the Friday hearing on pre-trial motions in Melton’s felony trial. Danks also subpoenaed Clarion-Ledger reporter Chris Joyner that same day.

The JFP filed a motion seeking to quash Danks’ subpoena because it “is repugnant to the U.S. Constitution as it threatens the freedom of the press by forcing Mr. Johnson to testify about matters he has reported on behalf of Jackson Free Press.”

In the motion. Butler Snow attorney Malissa Winfield argued that Judge Joe Webster should quash the subpoena for a number of reasons, including the fact that Danks served it mere hours before the hearing. “Clearly, a subpoena requiring Mr. Johnson to appear with less than a day’s notice is not reasonable,” Winfield wrote, “and subjects Mr. Johnson to an undue burden of having to scramble and stop his regular work and appear for a hearing in not a week, or a day, but based on mere hours notice.”

Karen Brown Dunlap, president of the Poynter Institute, which is a journalism school and advocacy group, said that even when subpoenas of journalists are thrown out, they can have a chilling effect on the media. “Increasingly, we find that even with the subpoena, you’re taking a journalist away from the business of reporting, you’re tying up time, and in some ways expense, and the public suffers,” she said.

Winfield also objected to the fact that Johnson was given no description of what he could be expected to discuss, and thus had no way to prepare for his testimony. Winfield noted that newspaper articles are “self-authenticating” and cannot serve as the basis for a subpoena.

The crux of Winfield’s argument is that Danks’ subpoena violated freedom of the press. “Subpoenas threaten freedom of the press when they require journalists to testify concerning matters on which they report. Journalists should be free to write about controversial matters without the threat of subpoenas requiring them to give testimony not necessary to a case. Without constitutional protection, reporters would be subjected to burdensome and harassing subpoenas and would be harmed in their ability to collect material for controversial stories,” Winfield wrote.

Dunlap agreed. “When the court subpoenas a journalist, it raises some serious questions,” she said, “because at the heart of it, the issue is the danger of inhibiting a free press. Individual cases can differ, but whenever news media are subpoenaed, citizens ought to be concerned about inhibiting a free press.

During the hearing on Friday, Danks referred to articles written by Johnson and Joyner as part of his argument that District Attorney Faye Peterson had improperly included information about a possible plea deal from Melton knowing that this information would be published by the media. “The language in these stories is taken verbatim from the DA’s motion,” Danks said in court. “In fact, the headline of the Jackson Free Press’ story was ‘DA Drops Bombshells.Ҕ

It was clear from Danks’ statement that he did not require additional testimony beyond what was in the published story. Thus, Danks’ subpoena was unnecessary.

After Webster dismissed Danks’ motion against the DA, Winfield asked the judge to rule on her motion to have the subpoena on Johnson quashed. Webster quickly agreed.

“I’m not even sure why they were ever subpoenaed,” Webster said.

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