Just as Journalism Week -- the Alaska Press Club's annual conference -- wrapped up in Anchorage over the weekend, a legal case of interest to the profession is making its way through Alaska's court system. At issue is whether a plaintiff in a civil lawsuit should have the right to interrogate journalists about their sources and why they chose to write their stories. Former U.S. Senate candidate Joe Miller, still stinging from his 2010 write-in defeat to incumbent Lisa Murkowski, believes he should be allowed to do this. Alaska Dispatch and others believe his request is off base and improper.
Full disclosure: Alaska Dispatch remains a party to the case, although it plans to file a motion to be released from the litigation. Other media entities are no longer involved.
Although the case is not directly about the press corps, it has roped the press corps in as Miller attempts to seek damages related to his election loss. He's going after his former employer, fueled by the belief that someone there leaked word of his misdeeds that should, he believes, have stayed under wraps.
For years, Miller served as a part-time lawyer for the Fairbanks North Star Borough, adeptly handling some of its biggest and most-important cases. Yet this recent work experience was conspicuously missing from the employment history Miller's campaign put out to voters. It didn't take long for people to catch on to the missing detail. For a while, Miller fielded questions about it. But the more reporters kept demanding explanations, the more the candidate dug in and refused to talk openly.
Miller eventually released an incomplete set of his employment records from the borough. What was he working so hard to hide? Eventually, the press corps, led by Alaska Dispatch, sued the borough for the release of these public records and won. The records showed Miller had, against borough policy, snuck on to his colleagues' computers, used the access to pad a political poll he was involved in, then lied about it to try to cover up what he had done. He was ultimately disciplined for the behavior.
Miller: Who talked?
Miller has long believed he was the victim of an injustice, that someone within the borough, either a past or current employee, leaked confidential information from his personnel file to the media and others. In seeking to remedy the harm he believes this caused him, he has sued his former employer on two fronts. He wants the borough to pay his legal costs from the initial freedom-of-information lawsuit, which he jumped into hoping to prevent disclosure of records about him. Miller claims the borough has an obligation to do so because he's a former employee. His rationale is that the lawsuit stems from his employment as a borough lawyer, and not his candidacy for a powerful public office. In the second prong of his suit against the borough, he wants to ferret out whether someone talked who should not have.
Enter journalists as targets for deposition.
In an attempt to get at this second question – who talked to whom and when – Miller has deposed journalists, a blogger and his former colleagues. The media, including the blogger who first questioned Miller's employment history with the borough and the manner in which he left, have claimed privilege, arguing that they are protected under both the federal and state constitution from the kind of inquiries that grind against the tenets of their profession.
What's more – Miller is not arguing that lies were told about him. He's unhappy that the truth came out, revealed in a trail of documents that rightfully should have been accessible to the public to begin with.
Rocky relationship with press
As a candidate, Miller's relationship with the press corps has been rocky, if not combative, at least verbally -- and once, literally.
Miller and Alaska Dispatch made national headlines in October 2010 when a member of a private security team working a Miller town-hall event at a public middle school arrested and detained Dispatch editor Tony Hopfinger. Hopfinger had aggressively asked Miller questions about the candidate's work history with the borough. In media reports following the handcuffing, Miller characterized Hopfinger as an unstable blogger they feared could be prone to violence. This characterization served two purposes: diminish Hopfinger's status as a respected journalist in the state, and imply that it was the press -- Hopfinger -- that had caused its own consequences by acting badly.
The taint of having handcuffed a reporter at a public event for seeking answers the public had a right to know stuck with Miller for the rest of the election.
Alaska Dispatch attorney John McKay has argued Miller's desire to go after members of the press is wrong. Other people, including Miller, could have and likely did talk about Miller's misdeeds at the time they occurred. This means Miller has other avenues he could pursue to get at the information he seeks, rather than targeting journalists. And it means that the information he felt should have stayed private all along, was in fact not private.
'Put an end to it'
Below are a few excerpts from McKay's motion about why the court should deny Miller the opportunity to force journalists to testify:
"The press – indeed, all citizens – have the right to engage in such activities without being embroiled in years of litigation, subject to retaliation, or grilled about what has motivated or influenced them to learn and discuss public officials, public affairs, and candidates for public office," and,
"In October 2010, Joe Miller's private guards wrongfully arrested a reporter for trying to ask questions about what was in the records he was trying to conceal. Now, a year and a half later, he is asking a government official, this court, to compel the press to answer questions about why they had the temerity to seek those public records: Who might have put them up to asking for these records? What were their motivations, or the motivation or affiliations of their sources? Were they fellow travelers with his political opponents? This is unseemly and unjustified. The court should put an end to it."
In an interesting twist, Miller has argued that reporters and journalists who are parties to the legal proceeding should not be protected by privilege because they are directly involved in the litigation. This legal right is a time honored-tradition to obtain evidence and information relevant to the case. But McKay has asked the court to reject Miller's analysis on this point, and has urged the court to see it as an unseemly tactic to get around the protections afforded to members of the fourth estate – a dangerous precedent to penalize citizens who are flexing their right to obtain public records.
Read McKay's full motion in the PDF attached to this article.
Contact Jill Burke at jill(at)alaskadispatch.com