A second first amendments rights case broke out amidst the brouhaha over the legality of teaching intelligent design in a Dover school district. But this battle, over the freedom of the press, is nearing a denouement that?s left me a bit ambivalent. The Thomas More Law Center, which has been defending the Dover school district had subpoenaed two freelance reporters, Joseph Maldonado for the York Daily Record and Heidi Bernhard-Bubb for the York Dispatch, to question them regarding the details of a school board meeting they attended. They had simultaneously reported that certain board members made statements tying creationism to intelligent design--statements that the board members now deny making.
This was a smart move for the IDers. Numerous other people could have been called to testify to the accuracy of the reports, but by issuing a subpoena to reporters, they could count on them to refuse to answer questions invoking their first amendment rights. This allowed the Thomas More lawyers to object to any testimony related to the ?hearsay? in those articles. The reporters stand by their stories, the papers stand by their reporters. And as recently as yesterday, it appeared the writers wouldn?t budge on giving a deposition, even at the risk of facing contempt of court charges from Judge John E. Jones III.
Just a few hours ago they agreed to testify to limited questioning that only speaks to the accuracy of their statements. This is something that the ACLU (representing the plaintiff) wanted to see on the court record, but the Thomas More lawyers presumably wanted to ask more probing questions. The outcome seems like a good thing, but could be bad for two reasons: One, it?s a falter for the freedom of the press. Reporters are supposed to be fair and unbiased, and that means not participating in the news. Many decisions in the past have found that reporters can be asked to testify only as a last resort ? which this was apparently not. Two, with the limited questioning stipulation, the Thomas More center can still whine that they?re not able to ask the right questions and therefore continue to dispute the accuracy of the story.