A journalist who was subpoenaed to testify at an obscenity trial for an artist specializing in pornography, will no longer have to testify because the Department of Justice dropped the subpoena without explanation.
Tracy Clark-Flory, a staff writer for Salon, was subpoenaed to testify in U.S. v. Isaacs before the U.S. District Court in Los Angeles about an interview she had with Isaacs in April. Isaacs is currently facing obscenity charges for producing, distributing and selling four pornographic films containing scatology and bestiality.
Clark-Flory, who worried her testimony would affect her ability to get “sensitive interviews” in the future, said she did not want to testify, but felt that she had “no choice."
“I don't like the idea of an interview subject worrying that I would be called to testify against them,” she said.
Two days before Clark-Flory was supposed to testify on March 1, the Department of Justice informed her that she no longer had to testify, but declined to give an explanation.
A representative for the Department of Justice could not be reached for comment.
There have been disagreements in the federal circuits as to whether the First Amendment provides protections for reporters who do not wish to testify about their sources or newsgathering processes. This issue is the center of the Jeffrey Sterling case in the U.S. Court of Appeals in Richmond, Va. (4th Cir.).
James Chadwick, Clark-Flory’s lawyer, believes a federal shield law is necessary to “ensure a meaningful protection for journalists all across the U.S. in all kinds of proceedings,” he said. State shield laws do not apply in prosecutions in federal courts.
A shield law is essential for journalists because they are constantly gathering and reporting on controversial information that could turn into the subject of judicial proceedings, Chadwick added. Without it, journalists would constantly be “targets” to testify in a dispute, he said.
Clark-Flory’s testimony would have related to the test used to determine if material is obscene, Chadwick said. The third prong of the test looks at whether the material, taken as a whole, has “serious literary, artistic, political or scientific value.” If it lacks value, it may be considered obscene.
Isaacs’ defense is that his videos are art. Clark-Flory’s testimony would have verified that a statement in a published interview between Isaacs and herself in April was true because “he might possibly deny it as part of his defense,” she said.
In the interview, Clark-Flory asked Isaacs if one of his goals was to prove that the films had artistic merit.
Isaacs replied, “I have to do that to sound not guilty.”
“The government believes it’s an admission that he does not sincerely believe that the material had any artistic merit and therefore was going to use the information to impeach Isaacs’ testimony,” Chadwick said.
The case against Isaacs has been in litigation since 2007. Isaacs’ first trial was appealed. His second trial has begun.
Thirty nine states, including California, and the District of Columbia, have adopted a shield law, which protects journalists from testifying in court about sources and information obtained during newsgathering. Media advocates have been attempting for several years to enact a federal shield law, but no such bills have passed the Senate.
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