Courting Disaster: An Erosion of Press Protections in Vermont | Fair Game | Seven Days | Vermont's Independent Voice

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Courting Disaster: An Erosion of Press Protections in Vermont

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Sen. Norm McAllister and attorney Brooks McArthur last Thursday outside Franklin Superior Court. - PAUL HEINTZ
  • Paul heintz
  • Sen. Norm McAllister and attorney Brooks McArthur last Thursday outside Franklin Superior Court.

Last October, Vermont State Police Detective Sgt. Benjamin Katz showed up unannounced at Seven Days' Burlington headquarters.

He had spent the previous six months investigating allegations that Sen. Norm McAllister (R-Franklin) had sexually assaulted two women and attempted to trade rent for sex with a third. Seven Days had covered the story closely — interviewing both accuser and accused — and now Katz wanted to get his hands on what we'd gathered in the course of our reporting.

Within weeks of his visit, Franklin County Deputy State's Attorney Diane Wheeler subpoenaed news editor Matthew Roy, reporter Mark Davis and me to be deposed — and provide authorities all tape recordings, notebooks and emails related to the case.

"It was scary and disruptive," says Seven Days publisher and coeditor Paula Routly.

It was scarier still — for me, at least — to learn how vulnerable Vermont reporters are to being deputized as virtual law enforcement agents. Unlike 40 other states and the District of Columbia, Vermont has no media shield law on the books. Such statutes, which vary widely from state to state, generally protect reporters from having to divulge confidential sources and unpublished information — and at least require attorneys to exhaust other alternatives first.

For decades, according to retired Burlington Free Press reporter Mike Donoghue, a 1974 Vermont Supreme Court case known as State v. St. Peter protected reporters from such intrusions unless the relevant information was material to guilt or innocence and it wasn't available from another source.

"I had 18 subpoenas from defense lawyers, from prosecutors — sometimes got subpoenaed by both sides in a case," says Donoghue, who serves as executive director of the Vermont Press Association. "And each time there was no showing that the St. Peter test could be met."

But in the past decade, according to Gravel & Shea attorney Robert Hemley, press protections in the state "have been eroded significantly." In 2005, the Vermont Supreme Court forced WCAX-TV to provide prosecutors unaired footage of University of Vermont students rioting after the Boston Red Sox won the penant the year before. In 2007, the court required a reporter from Bradford's Journal Opinion to testify about what he'd heard in a public meeting.

These decisions have had real-world implications for Vermont reporters and the readers they serve, according to Allen Gilbert, the outgoing executive director of the American Civil Liberties Union of Vermont. The threat and cost of litigation can prompt reporters and financially struggling news outlets to censor themselves — and the threat of a subpoena can cause sources to clam up.

"Why would anybody talk to a reporter again if there's any hint, at all, that there might be criminal charges arising from something?" Gilbert asks.

Adds Society of Professional Journalists president Paul Fletcher, "You put a reporter in kind of an untenable position of having to decide whether I'm going to spill the beans on my source who trusted me or if I'm willing to take a contempt citation and go to jail."

Seven Days decided to fight back.

We hired Hemley, the state's top First Amendment lawyer, and filed motions to quash the subpoenas. The prosecution dropped its pursuit of Roy, who had conducted no reporting on the story. And, in a January decision, Franklin County Superior Court Judge Robert Mello ruled in my favor. He noted that prosecutors could obtain what they wanted — namely, what I'd learned in interviews with one of the alleged victims — from the woman herself.

"The production of either Mr. Heintz's testimony or notes would be an undue burden on the press," Mello wrote, adding that it could prompt reporters in the future to destroy their notes.

Davis wasn't so lucky. McAllister had admitted to him during an October 2015 interview that he had had sex with the women in question — an admission the senator later recanted. Because McAllister could assert his Fifth Amendment right to avoid testifying at his own trial, Mello ruled, Davis was the only source for that information.

Shortly before McAllister stood trial last week, Wheeler subpoenaed yet another reporter: Vermont Public Radio's Peter Hirschfeld. The prosecutor was hoping he'd confirm the authenticity of a recording of a January press conference during which McAllister denied having sex with one of the alleged victims. Why Wheeler chose Hirschfeld was never quite clear, given that nearly half the Statehouse press corps — myself included — witnessed the event, as did two non-journalists: doorkeepers working for the sergeant-at-arms' office.

"We did not believe that it was appropriate to call Pete or subpoena Pete," says VPR senior vice president John Van Hoesen. "There were other people there who could authenticate this information that was being sought."

Last Wednesday afternoon, as Davis and Hirschfeld milled around the St. Albans courthouse with several state legislators who had also been called to testify, Wheeler and McAllister's attorneys struck a deal: They would admit as evidence portions of Davis' story and the press conference recording — and release the two reporters from testifying. The next morning, for unrelated reasons, the prosecution's case fell apart — and the state moved to dismiss two charges against McAllister. (See story.)

By then, Seven Days had racked up more than $15,000 worth of legal bills and spent countless hours defending itself.

"It was uncomfortable for obvious reasons," says Davis, who has covered cops and courts for a decade and has never been forced to testify. "I was proud of our efforts to resist it at every turn."

It could have been worse. Though the prosecution's initial request would have swept up notes and recordings of off-the-record conversations, Judge Mello proved somewhat sympathetic to the press, and the attorneys involved eventually backed down. Our stories did not rely on confidential sources, and we were not forced to choose between honoring our commitments and avoiding jail time.

Next time, we might not be so lucky.

That's why Fletcher thinks Vermont would be wise to pass a shield law. It's a risky proposition, he says, to rely on the goodwill of judges and prosecutors.

Among the current crop of gubernatorial candidates, there appears to be support for such legislation. Democrats Matt Dunne and Sue Minter and Republican Bruce Lisman say they support passing a robust shield law in Vermont. As it happens, both Dunne and Minter are married to journalists and writers.

Democrat Peter Galbraith and Republican Lt. Gov. Phil Scott say they, too, support enacting a shield law, though with some qualifications — including exceptions for when information cannot be obtained elsewhere.

In the meantime, Vermont journalists have to get back to work.

After the trial ended last Thursday, Seven Days reporter Terri Hallenbeck thought to drop by McAllister's Franklin farm to see if he'd discuss the unexpected outcome. Doing so was a risk, because it could land Hallenbeck a subpoena of her own. But doing so is her job. She went.

Four the Record

Starting next month, the oldest daily newspaper in Vermont can no longer be described that way.

The Rutland Herald and its slightly younger sister publication, the Barre-Montpelier Times Argus, plan to cease print publication on Mondays, Tuesdays and Wednesdays. The family-owned newspapers will continue publishing online those days and expect to distribute "expanded" editions through the rest of the week.

The Herald and the TA announced the changes, which take effect early next month, after company brass briefed employees Monday afternoon. Owner R. John Mitchell framed the move as a means of avoiding further layoffs while moving to a digital future.

"We've cut, I think, all the jobs we can without really decimating the newsroom," he told his paper. "This is an attempt to keep from having dramatic layoffs in the newsroom and to try and monetize the technical base we've built for social media."

David Mindich, a journalism professor at Saint Michael's College, says the move to digital makes some sense, calling the old model — "growing trees, cutting them down, schlepping newspapers all over town in cars and trucks" — "insane." But whether newspapers such as the Herald and TA can make up lost print revenue online, he says, "is still an open question."

Damn Emails?

For more than a year, Vermont Republican Party vice chair Brady Toensing has been seeking to pry emails out of the hands of Attorney General Bill Sorrell. On Monday, the Charlotte attorney and political instigator filed suit against the retiring AG — to force him to give them up.

According to Deputy Attorney General Susanne Young, Toensing's requests — for four years' worth of emails between nine state employees and 30 others — netted 13,629 messages. The office turned over "hundreds of pages of documents" last winter, she said in a letter to Toensing, but would not search messages sent to or from Sorrell's personal email account or those of his staffers.

Toensing argues that's a violation of the state's Public Records Act, which does not distinguish between communications sent by state email, personal Gmail or carrier pigeon.

"This decision to refuse to even search for records is nonsensical and unsupported by any authority," says Toensing, who filed his complaint in Chittenden Superior Court. "It is shockingly arrogant, completely guts the public records law and puts General Sorrell's political self-interest over that of the state."

Toensing's characteristic hyperbole aside, Young's decision could have far-reaching ramifications. State legislators and even members of the notoriously recalcitrant Shumlin administration have occasionally provided reporters with messages sent by text or personal email accounts.

Gilbert, the departing executive director of ACLU-Vermont, agrees with Toensing, calling it a "very bad precedent to say that anytime something's on a private device it's off-limits."

"The logic is that anybody could immunize a public record from public scrutiny simply through the use of non-state devices," Gilbert says, comparing the situation to the "Hillary Clinton private email server problem."

Sorrell takes umbrage at the notion that he's engaging in "some great Machiavellian conspiratorial whatever." He says he's careful to forward emails inadvertently sent to his personal email account on to his state account.

"Trying to use private email systems to avoid matters getting into the public record is wrong," he said in a Monday interview. "And if that was drawn to our attention, we'd look into that."

Asked how a reporter would know whether the law was being skirted, Sorrell suddenly turned hostile and accused Seven Days of "carrying water for Brady Toensing."

Huh. Put it in an email.

Donald Duck, Pt. II

Former vodka purveyor Donald Trump is the most talked-about man in American politics. According to one research firm, mediaQuant, he received nearly $3 million in free media coverage in his bid for the Republican presidential nomination.

But, evidently, Trump remains an enigma to two of Vermont's top Republican politicians. For months, Lisman and U.S. Senate candidate Scott Milne have said they don't know whether they'll support the racist, sexist, xenophobic demagogue.

Their indecision stands in stark contrast to Lt. Gov. Scott, Lisman's gubernatorial rival, and former state auditor Randy Brock, who is running to succeed Scott as LG. Both men spoke out against Trump last year and have said they will not vote for him.

We here at Seven Days are curious what it will take for Lisman and Milne to make up their minds, so we intend to check in with them — and other top Republicans — each week until they do.

Lisman, according to spokeswoman Shawn Shouldice, "continues to evaluate Mr. Trump's candidacy" and "has not decided whether or not to support Mr. Trump." Shouldice adds, "Bruce will continue to give the issue deliberate and thorough consideration."

Milne, who previously told Seven Days he would disclose his presidential pick by October 15, also remains undecided. But the Pomfret Republican says he has found recent remarks by Trump — particularly those denigrating a Mexican American judge born in Indiana — "distressing."

"I'm listening, and I have an open mind, but unfortunately it continues to get harder and harder to support him the more he talks," says Milne, who is running against Sen. Patrick Leahy (D-Vt.).

Trump's suggestion that the federal judge, Gonzalo Curiel, could not perform his duties without bias because of his heritage was not racist, Milne maintained, but a worrisome intrusion into the judicial branch.

"'Racist' is a pretty strong word," he says. "I thought it was inappropriate. And I just disagreed with it. I don't want to get into calling Donald Trump a racist."

We'll see if he does next week.


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