Swear to tell the truth, the whole truth …
Good to see Madison’s alternative news source Isthmus back on news stands. Their second issue in print reports their resistance to the subpoenaing of star reporter Dylan Brogan to testify on his eye witnessing of the 23 June 2020 BLM riot on Capitol Square. That’s when social justice warriors firebombed city hall, tore down statues of a civil rights hero and an early feminist prototype, broke windows, and beat a liberal, homosexual legislator.
We’re supposed to think “How noble! They’re fighting for the First Amendment! Our Right to Know!
Balderdash! (Platinum Subscriber Bonus ejaculation: Poppycock!) Editor Judith Davidoff bemoans that her publication can ill afford the $1,000 already spent fighting the subpoena. We sense a Go Fund Me appeal on the horizon.
→ Our advice to Isthmus: kwitchyer bitchen. You don’t have a case.
Isthmus argues that Wisconsin’s shield law protects journalists from testifying in court. But neither Brogan nor reporters for WKOW-TV27 and WORT-FM elicited confidential information from would-be whistle blowers. The three merely witnessed what was in plain view.
Isthmus argues that the shield law applies if the state can find other witnesses. Prosecutors say they cannot. Given the chaotic nature of that night and the rampant law breaking, it is unlikely that the perpetrators and their enablers would step forward. The three media representatives, on the other hand, are more readily located and (possibly) law abiding. That argument is, in any case, immaterial.
We question the very constitutionality of any shield law. Because, what is, exactly, a “journalist”? Do you post on Facebook? Congratulations! (Or condolences.) You are a journalist. The courts have consistently ruled that no one citizen has greater First Amendment rights than any other citizen.
In Branzburg v. Hayes (1972), the Supreme Court even refused to shield a reporter from divulging confidential sources. If such a privilege were established, Justice Byron White wrote, “sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
It’s why the Werkes was happy to see Citizens United strike down McCain-Feingold’s ban on issue advocacy in the critical months before an election, with its egregious and generous carve out for news organizations but not for me or thee.
Isthmus quotes their attorney to say, “This case is uniquely inappropriate for breaking the reporter’s privilege because the underlying events were witnessed by so many non-journalists.” He argued that the three reporters “were investigating, they were there and they witnessed things because they were reporting on what was going on. They happened to see …a potential crime.”
But when is a news reporter not reporting? You’re eating breakfast. Through your high rise window you “happen to see” a jetliner crash into the World Trade Center. You begin “reporting.” Either filing your first impressions with your news bureau, or commiserating with your sister in New Jersey, or sharing on social media.
In any event, why would Isthmus fight the subpoena? Why wouldn’t Dylan Brogan want to testify?
Blaska’s Bottom Line: One must wonder whether Isthmus would stage such noble resistance if it had witnessed the January 6 insurrection at the nation’s Capitol. Or the average random traffic accident, for that matter. One that wasn’t the result of a BLM protest, anyway.