Kalven wrote about his experience in a first-person piece for The Intercept:
Gaughan’s well-reasoned ruling came only after two months of litigation that significantly disrupted my life and required substantial investment of legal resources. Imagine how harrowing such a situation could be for a reporter who was not as well-positioned as I was. Or for a publication struggling, as so many are, to survive economically. Imagine living in a society in which attorneys could routinely haul reporters into court and inflict comparable costs on them and their publications with no more showing of relevance than was made in this case.
On December 6, the court heard arguments for and against the motion to quash the subpoena.
On December 13, Judge Vincent Gaughan quashed the subpoena from Van Dyke’s defense attorneys for Kalven’s testimony. Gaughan ruled that Kalven, as a journalist, could not be forced to give up his sources except under exceptional circumstances and that the defense attorneys did not adequately show the necessity of Kalven’s testimony.
The judge quashed the subpoena, and our executive director @jamiekalven was not forced to testify. We share this moment with all the journalists and media organizations who supported us. pic.twitter.com/xd04VCl4xP— Invisible Institute (@invinst) December 13, 2017
Jamie Kalven, a reporter who was the first to report the details of the shooting of teenager Laquan McDonald by Chicago police in 2014 — received a subpoena on Oct. 16, 2017 to testify and reveal details about his sources at a pre-trial hearing in the murder case of former Chicago police officer Jason Van Dyke.
Kalven is an independent journalist based in Chicago and the founder of Invisible Institute, a journalistic production company focused on government accountability. He won a George Polk award for his coverage of the McDonald case.
In February 2015, he published an article in Slate titled “Sixteen Shots,” which reported on evidence, including an autopsy report and statements from witnesses, that contradicted the Chicago police department’s public account of McDonald’s shooting. Kalven also reported on the existence of an unreleased police dash-cam video, which had captured the shooting. After public pressure and a court decision forced the city of Chicago to release the dash-cam video to the public, officer Van Dyke was charged with first-degree murder.
As part of his defense strategy, Van Dyke’s lawyer is trying to force Kalven to testify about his sources.
Kalven told the Freedom of the Press Foundation that he received a subpoena at his office on Oct. 16, 2017, ordering him to appear in court at 9 a.m. on the following day. Kalven said that he did not attend the Oct. 17 hearing and that his attorney informed Van Dyke’s attorney that he could not attend the hearing on such short notice.
During the hearing, Van Dyke’s defense attorney argued that Kalven needed to be called in to testify, according to an audio recording of the hearing taped by a journalist in attendance. Van Dyke’s legal team hopes to show that Kalven received leaked documents from the police oversight agency investigating the shooting and that he could have influenced potential witnesses in the case by interviewing them about the murder while reporting the Slate piece.
Chicago judge Vincent Gaughan seemed receptive to the defense team’s argument, though he did acknowledge that Illinois’ “press shield law” prevents journalists from being compelled to name their sources in some circumstances.
“The reporter’s privilege concerning the source will have to be litigated,” he said.
On Nov. 3, Kalven’s attorney filed a motion to quash the subpoena, citing the Illinois Reporter's Privilege Act.
The state law requires a person seeking to compel a reporter to testify about their confidential sources to file a detailed application with the court, which must include "the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; the specific information sought and its relevancy to the proceedings; and [a] specific public interest which would be adversely affected if the factual information sought were not disclosed."
The law also sets a high bar for a court to approve such an application; the court must find "that all other available sources of information have been exhausted and [that] disclosure of the information sought is essential to the protection of the public interest involved."
Kalven's motion to quash the subpoena stated that Van Dyke's legal team had not filed an application to overcome his reporter's privilege and therefore had not met their burden on the Reporter's Privilege Act. Van Dyke's attorney later filed an opposition to Kalven's motion to quash the subpoena. This opposition was filed under seal, so it is not clear what legal argument it makes.
On Dec. 5, the Reporters Committee for Freedom of the Press (a founding partner of the U.S. Press Freedom Tracker) led a group of 18 journalism and press freedom publications in filing an amicus brief in support of Kalven’s motion to quash the subpoena. In the amicus brief, RCFP wrote that “the public interest in protecting confidential sources is particularly compelling in this case” and argued that that the Reporter’s Privilege Act should protect Kalven from being forced to testify about his sources.
On Dec. 6, the court will hear arguments for and against the motion to quash the subpoena.
Kalven said that even if the motion to quash is denied, he will only answer questions to the extent that his sources are not jeopardized.
“I can imagine no situation in which I would reveal my source,” he said.
Kalven is not new to requests to surrender the details of his work. In 2005, the City of Chicago subpoenaed Kalven, seeking his notes, tapes, and other records gathered during reporting on abuse of police power. When he refused to comply, the court moved to hold him in contempt, but the threat dissipated when the case was resolved.
“I don’t want to say that I’m completely unconcerned about this,” he said. “But I have no internal conflict or anguish about what I should do.”