Duke University drops subpoenas to lacrosse-scandal blogger

Lilly Chapa | Reporter's Privilege | News | March 4, 2013

Duke University has withdrawn subpoenas seeking communications between a college professor who wrote about the North Carolina school's lacrosse scandal and the student athletes following an appeals hearing last week.

Duke lawyers dropped the subpoenas Friday before U.S. District Judge D. Brock Hornby could rule on whether a lower court’s decision to enforce the subpoenas should be overturned in Maine, where the professor lives. A lawsuit against the university stemming from the lacrosse case was also settled two days prior, making a portion of the subpoenas moot.

Brooklyn College professor Robert David Johnson said in an interview that the university acted before the judge could issue a decision that would brand the university as an enemy of the First Amendment.

“During the [Jan. 23] hearing, Duke stressed the importance of an immediate decision from the judge,” Johnson said. “As of last week, Judge Hornby still had not produced a ruling. The longer we went without a decision, given that Duke had consistently claimed they needed immediacy, the less likely it was that they’d get a decision that ruled in their favor.”

Johnson was the only journalist Duke subpoenaed because he continued writing about the issue after it was resolved.

“I was in a very exposed position in that I had done a lot of reporting and had a lot of exchanges with sources that had given me information in confidence,” Johnson said. “They would have never given me information without my assurance, and yet when I got the subpoena I was totally exposed because I had no institutional backing.”

Johnson began blogging in 2006 after three Duke lacrosse players were charged with the kidnapping and forcible rape of a stripper who said she was attacked while performing at a party at the home of two team captains.

A year later, all charges were dropped against the players after inconsistencies in the stripper’s story came to light. A local district attorney was later found guilty of criminal contempt for how he handled the case.

Johnson spoke with the players and their lawyers and defended them in his blog and the book he co-authored. After the charges were dropped, the players sued Duke for mishandling of the situation in two sets of lawsuits.

The university subpoenaed Johnson in July for all correspondence he had with anyone affiliated with Duke and the lacrosse case, including administrators, players and alumnae. Johnson filed a motion to quash the subpoenas, but a U.S. magistrate only narrowed the subpoenas, allowing the university to demand exchanges between Johnson and the 2006 team members and their attorneys.

Johnson appealed the ruling and Hornby heard arguments at the end of January. The university argued that reporter’s privilege belongs to the source, not the reporter, and since Johnson’s sources had filed a lawsuit he should have to turn over their correspondence.

The Reporters Committee for the Freedom of the Press filed a friend-of-the-court brief affirming Johnson's right to protect his confidential sources as a journalist.

Last Wednesday, one of the two lawsuits was settled, which rendered some of Duke’s subpoenas moot. Johnson’s attorney, Patrick Strawbridge, wrote a letter to Hornby stating that there was little reason to subpoena Johnson. Within 24 hours, Duke withdrew their subpoenas. Strawbridge has filed a motion to vacate the lower judge’s order.

“They conceded before an inevitable defeat,” Johnson said.