High School Journalists Successfully Test Shield Law In Cyberbullying Suicide Case

The students have beaten back an attempt to get them to reveal documents and confidential sources, in a case that would have had ominous ramifications for high school journalists nationwide if it had gone to trial. posted on

SARATOGA, Calif. — A trio of Northern California students working for their high school newspaper successfully beat back a legal maneuver on Tuesday to ignore their status as reporters and have their confidential materials subpoenaed in a civil lawsuit related to the suicide of their classmate, 15-year-old Audrie Pott, that was filed by the dead teenager’s family.

The confrontation between a grieving family and school press amplifies a growing issue in the digital era, when the definition of who is or who is not a journalist has been blurred. The withdrawal of this demand, at least for the moment, lays the groundwork for the formal extension of shield laws to high school students.

Last week, on their first day back from summer break, the three student reporters from Saratoga High School’s The Falcon received subpoenas demanding they turn over their unpublished materials, notes, and other documents related to their reporting — as well as all the names of their confidential sources, including 10 unnamed students referred to in an article.

“We are not willing to destroy our journalistic integrity by giving up our confidential sources,” said 17-year-old student reporter Samuel Liu who received a subpoena. “We got this information on the condition of anonymity, from people that trusted us.”

Audrie Pott’s family and their attorney, Robert Allard, claim that the teen’s suicide was provoked by virulent cyberbullying by the students of Saratoga High School. A week before her death in September 2012, Audrie is alleged to have suffered a sexual assault by four of her classmates at an off-campus party. According to Audrie’s parents, their daughter believed pictures of the alleged assault were circulating among students. In a statement to press, Allard said the pictures of Audrie’s assault went “viral” and spread “like wildfire” — a line that was repeated many times over in national and international press on the case.

The Pott family subsequently filed a civil suit against Saratoga High alleging negligence, wrongful death, and conspiracy to cover up of Audrie’s assault, cyberbullying, and suicide.

In April, the reporters from The Falcon decided to do their own investigation into Allard’s claim. “That didn’t sound right to us,” said Liu.

Liu, along with Falcon reporters Cristina Curcelli and Sabrina Chen (also served with subpoenas) conducted over 50 interviews with their classmates to find out how many people had actually seen the photos. One boy, a sophomore, who spoke to The Falcon on the condition of anonymity, said that he had actually seen the photos but did not know how many others had. A second source said that roughly 10 other students — whose names the source would not divulge — had also seen the pictures.

The Falcon ran the story with Chen, Curcelli, and Liu on the byline. Liu wrote a follow-up piece calling Audrie’s suicide a tragedy, but refuted Allard’s claim of rampant cyberbullying. The stories angered the family who have implied in their legal brief that the Falcon newspaper is complicit in the school’s cover up.

Attorney Robert Allard with the Pott family speaks for the first time about Audrie Pott’s suicide on April 15. Gary Reyes/San Jose Mercury News / MCT

Though California has the strictest reporter shield laws in the country — protecting reporters from revealing their confidential sources or unpublished work — Allard claimed that student reporters do not qualify as legitimate journalists because they are not professionally employed by a news gathering organization. The role of The Falcon, according to Allard, is to “educate children,” not for “information communication to the public.” Allard also added: “Your clients know the identities of at least 10 students who received those photographs. If they are not part of the solution, they are part of the problem. We have also alleged a conspiracy to conceal critical information, and we would like to believe that your clients were aiding our cause in unveiling cyberbullying for the protection of all other students in schools across the state. Continued resistance to this subpoena fosters cyberbullying.”

Liu refuted the accusation: “Cyberbullying is a huge problem in this country,” he said. “But it’s incorrect to say that our keeping promises to our sources is cyberbullying.”

Allard’s attempt to intimidate the student reporters to turn over their confidential material was countered by fierce resistance by their own council, Guylyn Cummins, an attorney who has represented journalists for 28 years and volunteers for the Student Press Law Center.
Representing the students, Cummins wrote back to Allard asserting that student reporters don’t lose their constitutional rights when they step onto campus, nor are they representatives of the school itself.

“Your emphasis on the educational function of the school or its newspaper is further misplaced given California’s strong student press rights statutes that make clear that student media is a vehicle for expression,” Cummins wrote.

Courts can only pierce the reporters’ shield if all other sources have been exhausted or if the reporter is a direct witness to a crime. Neither of these criteria fit the Falconreporters.

After the sharp response from the students’ counsel, Allard decided to withdraw the subpoena yesterday afternoon. But he warned in an email that he and the Pott family may revisit the matter after the students graduate in June.

Allard’s associate Lauren Cerri downplayed the significance of the case in a phone call with BuzzFeed, saying, “I don’t know why there’s such interest in this matter since it’s just a subpoena.”

Even though it’s “just a subpoena,” Liu is confident that the case will have broader ramifications. “I was scared out of my mind when I first got the subpoenas, but I’ve learned more about journalistic rights, and I think I’m proud of the work we’ve done,” he said. “Our journalistic rights are not shed at the schoolhouse door.”

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