The Illinois law that protects journalists from having to reveal their confidential sources is scheduled for a rare test Wednesday at a pretrial hearing in the murder case against Jason Van Dyke, the white Chicago police officer who fatally shot black teenager Laquan McDonald.
The October 2014 killing had been just another largely ignored shooting by the city’s police until journalist Jamie Kalven drew from confidential sources to report key information such as the 17-year-old’s path away from officers before the gunfire.
But Kalven is not just a journalist. He is also an activist. For years he has pressed for greater Chicago police accountability.
Now Van Dyke’s attorneys are claiming that Kalven is not a reporter as defined by the Illinois Reporter’s Privilege Act. They are asking Cook County Judge Vincent Gaughan to order Kalven to answer questions about his sources in hopes the information supports their claim that the case’s investigation was tainted.
Kalven, who is opposing a subpoena from Van Dyke’s team, vows to protect his sources. And he insists the law is on his side.
“I’ve never ceased to be a journalist because I have acted vigorously as a citizen,” he said.
The law, in place since 1982, defines “reporter” broadly as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis.”
Nearly every state in the country has enacted a shield law, as such reporter protections are known. The aim is to help news media expose corruption and abuses of power. Press-freedom advocates said Kalven’s reporting on the McDonald shooting shows exactly why the protections are important.
“Ordering him to testify about his sources on the pretext that he’s not really a journalist would blow a big hole in the Illinois shield law,” said former New York Times executive editor Bill Keller, now the editor-in-chief of the Marshall Project, a nonprofit news outlet that covers criminal justice. “It would set back the cause of police accountability at a time when it’s never been more needed.”
Order to appear
Kalven’s story, published in February 2015, revealed a county medical examiner’s report that found that McDonald had been shot 16 times.
Citing confidential sources, Kalven also reported that the teenager was walking away from the officers as one of them opened fire, that the “barrage of bullets” continued after McDonald fell to the pavement, and that a police dashboard camera recorded the incident.
Dan Herbert, Van Dyke’s lead attorney, has claimed in court that Kalven obtained leaked city information that he may have conveyed to witnesses, affecting their accounts to investigators and providing unfair advantages to prosecutors.
In October, Van Dyke’s team subpoenaed Kalven to appear in court, presumably for questioning about his sources. In court, Gaughan voiced support for bringing in the reporter.
A Kalven motion to quash the subpoena accuses Van Dyke’s attorneys of an “improper fishing expedition.” The motion also invokes the reporter’s privilege, which shields journalists from having to reveal confidential information unless it is relevant to the proceeding, important to the public and unavailable through other means.
A Herbert filing in response to Kalven’s motion was not available for public viewing. Herbert did not respond to WBEZ messages seeking comment.
A Gaughan “decorum order” for the Van Dyke case bans the parties from public comment outside the courtroom. Gaughan also keeps many filings from public view.
After off-the-record Nov. 6 proceedings in Gaughan’s chambers, the judge announced that Wednesday’s hearing would focus on Kalven’s role.
“The reporter has to be here to establish that he is a reporter so he comes within the privilege of the statute, and we’re going to have an argument on that,” Gaughan said.
Among journalists who focus on Chicago policing, Kalven has had impact like few others.
His report on the McDonald shooting led to litigation that compelled the city to release the video in November 2015, sparking a political crisis for Mayor Rahm Emanuel and wide-ranging efforts to overhaul the city’s policing. Kalven’s report earned numerous local and national journalism awards.
So did his 20,000-word report on a police “code of silence” that allegedly protected a crew of corrupt officers led by Ronald Watts, a sergeant sent to federal prison in 2013. That report animated legal efforts that have convinced judges to toss out 26 convictions tied to Watts, a number that seems likely to increase.
Kalven also has few peers when it comes to blurring the traditional line between journalism and activism.
A biography posted by the Invisible Institute, a nonprofit organization he founded, identifies him as a “writer and human rights activist” who “has reported extensively on patterns of police abuse and impunity in Chicago.”
Kalven, according to the biography, has had “a parallel career working in inner city Chicago neighborhoods.” That work has included consulting for public-housing residents on Chicago’s South and West sides and a program for ex-offenders and gang members.
The advocacy has extended to interventions in both state and federal court. Kalven was the plaintiff in a lawsuit that led the Emanuel administration to release police-misconduct data spanning decades.
Last year Kalven petitioned a judge to appoint a “special master” with subpoena powers to investigate Watts-tied convictions. That effort was unsuccessful.
Thin case law
Illinois judicial rulings on whether activism can negate a reporter’s privilege are scant.
“To be honest, I don’t think that any Illinois court has really addressed this particular issue,” said Steven Mandell, a First Amendment attorney whose firm on Tuesday filed an amicus brief for 19 news outlets and trade groups supporting Kalven’s motion to quash the subpoena.
But Mandell pointed out that the reporter’s privilege applies to part-time journalists.
“I’m not aware of any court that has found that simply because a reporter acts in some other capacity — for example, even joining as a party in a lawsuit in an unrelated matter — that that somehow jeopardizes the reporter’s privilege,” Mandell said.
If Kalven was acting as a journalist and if he did not disclose information outside his role as a reporter, he should not be ordered to reveal his sources, according to Mandell.
A motion from prosecutors also urges the subpoena to be quashed. The motion points to the reporter’s privilege statute and argues that Kalven’s sources are irrelevant to the murder case.
If the motions to quash do not prevail, Gaughan could order Kalven to testify.
In that case, Kalven said, he would keep his promises about confidentiality: “I absolutely will not respond to any question that could reveal sources. Period.”
Judges have the power to fine and even jail those who defy their orders. Kalven said he understands the risks.