In Re Slack
768 F. Supp. 2d 189
D.D.C.2011Background
- Competing First Amendment interests arise between a non-party reporter's privilege and a plaintiff's First Amendment claim in Peck v. City of Boston.
- Peck served a subpoena in a DC-depositional context seeking Donovan Slack's testimony regarding Faneuil Hall's street-performer restrictions.
- Slack, a Boston Globe reporter, moved to quash the subpoena, asserting a First Amendment reporter's privilege over the requested testimony.
- The underlying Massachusetts case concerns whether the City of Boston's space restrictions at Faneuil Hall violated Peck's free speech rights, with a dispute over the size of the designated performance area (225 sq ft vs about 5,000 sq ft).
- The MA district court had denied cross-motions for summary judgment; trial was scheduled for April 11, 2011; the subpoena was noticed for February 16, 2011, prompting this quash decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Slack's deposition is protected by the First Amendment reporter's privilege | Peck argues the privilege does not extend to Slack's nonconfidential observations. | Slack asserts the reporter's privilege shields testimony from compelled disclosure. | Privilege applies; Slack is entitled to quash. |
| Whether Peck overcomes the privilege by showing Slack's information is central to the case | Slack's observations about the Faneuil Hall layout are central to Peck's First Amendment claim. | Even if central, the privilege remains unless the burden is met. | Central information alone does not override privilege without exhausting alternatives. |
| Whether Peck exhausted all reasonably available alternative sources | Peck conducted some discovery but could not locate other witnesses to confirm area size. | Peck failed to provide concrete efforts or specifics showing lack of alternative sources. | Peck failed to exhaust alternate sources; privilege remains intact. |
Key Cases Cited
- Zerilli v. Smith, 656 F.2d 705 (D.C.Cir. 1981) (two-step test balancing need and alternatives for reporter's privilege)
- Carey v. Hume, 492 F.2d 631 (D.C.Cir. 1974) (limit intrusions on press; compelled disclosure as last resort)
- Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115 (D.D.C. 2002) (confirms broad scope of journalist privilege and nonconfidential info protection)
- In re Subpoena to Jeffrey Goldberg, 693 F. Supp. 2d 81 (D.D.C. 2010) (quashes subpoena for nonconfidential statements; applies privilege to journalists)
- Mortensen v. Nat'l Labor Relations Bd., 701 F. Supp. 244 (D.D.C. 1988) (lesser showing required for nonconfidential information disclosure)
- McGraw-Hill Co., Inc. v. U.S. Commodity Futures Trading Comm., 507 F. Supp. 2d 45 (D.D.C. 2007) (two-factor test for protective orders and privilege balance)