“…[T]his very lawsuit is an attack on the protections afforded to reporters under both the state and federal Constitutions – protections meant to foster the public’s interest in and right to a free press.”
By Robert Cloud, managing editor, Waupaca County Post
Wood County Circuit Court Judge Todd Wolf granted a motion Friday for an order protecting the confidential sources of Brandi Makuski, editor of the Stevens Point City Times.
On March 27, two Stevens Point School Board members, Kim Shirek and Lisa Totten, filed a defamation suit against Makuski and Multi Media Channels, LLC, publisher of the City Times.
Their civil complaint alleges that since November 2014, the City Times has published articles critical of the plaintiffs which contained false and inaccurate statements about the plaintiffs’ conduct at school board meetings. The complaint also alleges that a Feb. 6 article about a recall attempt against the plaintiffs implies that they “engaged in a coordinated campaign of criminal activity” including harassment of those involved in the recall.
After the suit was filed, Jacob Manian and Matthew O’Neill, the attorneys representing Shirek and Totten, served Makuski with a list of questions, a request for production of documents, and a notice of deposition.
Among other things, they sought information about Makuski’s sources and required that she “identify each and every individual with whom you communicated, or with whom you attempted to communicate in order to investigate and/or to confirm the veracity of the information” regarding the alleged harassment of those involved in the recall.
The attorneys for Makuski and MMC, George Burnett and Kurt Goehre, filed a motion asking the judge to grant a protective order to prevent discovery of information concerning Makuski’s sources and to quash the notice of deposition of Makuski. They argued that the goal of the lawsuit and request for discovery was an attempt to circumvent the law protecting reporters’ sources. They also noted in their motion that they had sent a letter to the plaintiffs’ attorneys prior to the lawsuit being filed.
“There is no doubt that everything printed in that article was truthful based on the statements and evidence compiled,” Goehre and Burnett stated in the letter. “Moreover, it appears that your clients’ unsupported threat of litigation against the Stevens Point City Times may merely be another attempt to uncover the source of certain ‘leaks’ from closed session meetings of the School Board. Recently your clients requested that the School Board investigate the source of such ‘leaks,’ which was denied by the School Board.”
When public officials sue reporters for defamation, they must not only prove that the alleged facts are false and slanderous, but they must also prove actual malice—that they were made knowingly and with the intent to harm the official’s reputation.
“To meet this high burden, requiring evidence that the newspaper knew the statements were false or recklessly regarded their truth or falsity, plaintiffs will necessarily need to burrow into the true sources, or lack of sources, behind the article,” Manian and O’Neill argued in a May 15 brief.
In a reply brief filed on June 15, Goehre argues that the plaintiffs’ attempts at gaining information on Makuski’s sources “infringes on the First Amendment right to a free press and Article I, section 3, of the Wisconsin Constitution.”
The brief notes that state law provides special protection for reporters. Reporters cannot be ordered to disclose their confidential sources or non-confidential sources unless, among other things, the party seeking the information has exhausted all other sources; that the information must not duplicate that which the party already knows; and the information must be clearly relevant to an important issue in the case.
The June 15 brief argues that the plaintiffs have not demonstrated that their request for information related to sources meets the conditions necessary to overcome the reporter’s privilege.
“There is no public interest in seeing that public officials squelch the reporting of public proceedings and reporting on public officials,” Goehre states in the June 15 brief. “In fact, this very lawsuit is an attack on the protections afforded to reporters under both the state and federal Constitutions – protections meant to foster the public’s interest in and right to a free press.”
At Friday’s motion hearing, Judge Wolf found that the plaintiffs needed to provide clear and convincing evidence and follow proper procedure if they desired source information. He then granted the defendant’s motion for a protective order and to quash Makuski’s deposition.