Beverly et al v. Chicago State University Board of Trustees et al

Filing 170

MEMORANDUM Opinion and Order Signed by the Honorable Sheila M. Finnegan on 7/7/2016. Mailed notice(sxw, )

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 1 of 20 PageID #:1987

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PHILLIP BEVERLY, et al.,

)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
WAYNE D. WATSON, et al.,
Defendants.

No. 14 C 4970
Judge Joan B. Gottschall
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiffs Phillip Beverly and Robert Bionaz are members of the faculty at
Chicago State University (“CSU”).

They helped to found, and are the primary

contributors to, a blog titled CSU Faculty Voice, which aims to expose perceived
mismanagement at the university.

This litigation presents Plaintiffs’ First and

Fourteenth Amendment claims against three CSU administration officials, now-former
President Wayne Watson, Vice President of Labor and Legal Affairs and General
Counsel Patrick Cage, and Associate General Counsel Janelle Carter (collectively
“Defendants”), who allegedly attempted to shut down the blog.
declaration

that

CSU’s

Computer

Usage

and

Plaintiffs seek a

Cyberbullying

Policies

are

unconstitutional, a permanent injunction prohibiting Defendants from further censoring
Plaintiffs’ lawful speech, and monetary damages.
During Plaintiffs’ depositions on September 18, 2015 and October 1, 2015,
defense counsel made inquiries into the allegations that Defendants have unlawfully
chilled Plaintiffs’ free speech and expression.

Plaintiffs testified that several

“confidential sources” provided information that they and other contributors to the blog

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 2 of 20 PageID #:1988

could not publish out of fear that Defendants would discover the sources’ identities
(based on the nature of the information) and thereafter retaliate against those sources.
Counsel then asked about the identity of the sources, and Plaintiffs’ counsel objected,
asserting that a “qualified reporter’s privilege” protected Plaintiffs from answering. (See
Doc. 136, at 23-25, 38-39) (Dep. Transcripts).

Presently before the Court is

Defendants’ motion to compel Plaintiffs to answer the questions. (Doc. 136). For the
following reasons, the motion is granted.
BACKGROUND
A.

The CSU Faculty Voice

Beverly and Bionaz are associate professors at CSU who teach political science
and history, respectively. In March 2009, Beverly began publishing the CSU Faculty
Voice “for the express purpose of exposing the continuing and impending corruption of
the university.”

(Doc. 45, Beverly Aff. ¶ 2).

He invited other faculty members to

participate, including Bionaz, who has contributed regularly since its inception. (Doc.
46, Bionaz Aff. ¶ 2). In Plaintiffs’ view, the blog “has evolved into a forum that seeks to
inform readers about events at Chicago State University and expose malfeasance
perpetrated by the school’s administration.” (Id.; Doc. 45, Beverly Aff. ¶ 2). According
to Beverly, he and other contributors levy public document requests via the Illinois
Freedom of Information Act (“FOIA”), thereby “operat[ing] very much like investigative
journalists, seeking source materials, corroborating [their] authenticity, and providing
opportunity to have those arguments rebutted.” (Doc. 45, Beverly Aff. ¶ 5). Likewise,
Bionaz “consider[s] [himself] an investigative journalist . . .” in his blog-related work.
(Doc. 46, Bionaz Aff. ¶ 3). Early articles by Bionaz and Beverly focused on topics like a

2

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 3 of 20 PageID #:1989

proposed “CSU Policy Manual,” the Board of Trustees’ selection of Watson as the new
CSU President, and a proposed “CSU Computer Usage Policy” prohibiting any
electronic communication “which tends to embarrass or humiliate any member of the
community.” (See Doc. 45-1, at 4-8, 35-36; Doc. 1 ¶ 24).
On November 6, 2013, Watson and Cage questioned Beverly about the tone of
posts on the blog. (Doc. 45, Beverly Aff. ¶ 8). Days later, on November 11, Cage
mailed a cease and desist letter to Beverly that demanded he disable the blog by
November 15, 2013. (Doc. 1-1, at 2). The demand letter stated that the blog had used
CSU’s trade name without permission or license, and also mentioned violations of
CSU’s policies regarding civility and professionalism, an apparent reference to the CSU
Computer Usage Policy. (Id. at 2-3; Doc. 1 ¶ 24). On November 27, 2013, Plaintiffs
and six other blog contributors made a counter-demand through counsel that Cage
“stop threatening them with legal action for exercising their First Amendment rights,”
and that Watson resign as CSU’s President. (Doc. 1-1, at 10). Their letter disputed
Cage’s contention that any person could be confused about the blog’s non-official status
given its highly critical content. (See id. at 10-11). Defendants responded on January
3, 2014 through outside counsel (who were not retained for this action), and in essence
maintained that the association between the blog and CSU was sufficiently strong as to
create plausible confusion among blog readers.

(Id. at 14).

The reply letter

acknowledged that the blog had taken some steps to comply with the prior request to
end infringement, but nevertheless reiterated that Plaintiffs needed to remove certain

3

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 4 of 20 PageID #:1990

associations between the blog and CSU to eliminate any “impression that the site is
authorized by CSU.” (Id.).1
As this dispute developed, Plaintiffs continued to publish. On December 13,
2013, for example, Bionaz published a post entitled “More Administrative Lies and
Blatant Cronyism: Angela Henderson, Wayne Watson and the University of Illinois
Chicago,” in which he criticized Watson’s hiring of Henderson as interim provost. (Doc.
45-1, at 11-14). On January 24, 2014, Bionaz again blogged about Henderson in a
story headlined “The Dissertation of Chicago State’s Vice President and Chief
Plagiarizing Officer.”

(Id. at 64-68).

Bionaz wrote that Henderson had plagiarized

portions of her dissertation, providing the text of her work along with the sources from
which she allegedly plagiarized. (Id.). One day later, he published three additional
articles about the alleged plagiarism, a topic to which he again returned in a post dated
January 30, 2014. (Id. at 70-80, 82-83).
Around the same time, in January or February 2014 according to Plaintiffs,
Watson, Cage, and others met to “discuss ways to silence Phillip Beverly’s criticism of
the CSU administration.” (Doc. 1 ¶ 34). Chief among the actions that Defendants
allegedly took to effect this goal was Watson’s introduction on March 7, 2014 of a
Cyberbullying Policy to the CSU Board of Trustees, which the Board adopted on May 9,
2014. (Id. ¶¶ 41, 42). Plaintiffs allege that following the Policy’s adoption, Defendants
relied upon it to challenge a post in which Bionaz questioned “the propriety of cronyism
in CSU hiring decisions,” and also in a “face-to-face conversation between Professor
Bionaz and Tom Wogan, CSU’s Director of Public Relations.”
1

(Id. ¶ 43).

Plaintiffs allege that, at the time of the first demand letter, CSU did not hold any
registered trademarks and did not file trademark applications until November 14, 2013. (Doc. 1
¶¶ 26, 27).

4

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 5 of 20 PageID #:1991

“Unsurprisingly,” Bionaz asserts, he was the first person to face a disciplinary
investigation under the policy, not even three weeks following its adoption by the Board.
(Doc. 46, Bionaz Aff. ¶ 6).
B.

Plaintiffs’ Claims

To address these and related concerns, Plaintiffs filed a Complaint on July 1,
2014 asserting facial challenges to the Cyberbullying Policy and the Computer Usage
Policy under the First and Fourteenth Amendments.

Plaintiffs also charge that

Defendants have retaliated against them for exercising their free speech through
“attempts to censor the Plaintiffs by demanding that they cease publication of the CSU
Faculty Voice . . . [,]” “efforts to investigate or sanction Plaintiffs for views published in
the CSU Faculty Voice . . . [,]” “efforts to subject the Plaintiffs to disciplinary procedures
based on their expressive activities . . [,]” and deprivations of Plaintiffs’ and others’
“clearly established rights to freedom of speech and expression . . .” (Doc. 1 ¶¶ 89, 90,
92, 93). They seek declaratory and injunctive relief, money damages “to compensate
[them] for the Defendants’ censorship and threat of punishment that chilled Plaintiffs’
expressive activity,” costs, and reasonable attorneys’ fees. (Id. at 20).
In order to prevail on the retaliatory chilling claim, Plaintiffs will need to prove that
they engaged in constitutionally protected speech, they have suffered a deprivation at
Defendants’ hands that is likely to deter their First Amendment rights to speech and
expression, and the speech caused Defendants’ actions. Massey v. Johnson, 457 F.3d
711, 716 (7th Cir. 2006); Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011); Surita v.
Hyde, 665 F.3d 860, 878-79 (7th Cir. 2011).

Plaintiffs must also prove that they

suffered damages. Fairley v. Andrews, 578 F.3d 518, 526 (7th Cir. 2009).

5

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 6 of 20 PageID #:1992

C.

Preliminary Injunction

On December 31, 2014, Plaintiffs moved for a preliminary injunction in which
they alleged that Defendants “have attempted, and continue to attempt to silence
Plaintiffs’ speech in violation of the First Amendment . . .” (Doc. 42, at 1).2 They asked
that Defendants be enjoined from: interfering with or shutting down the blog, imposing
sanctions on Plaintiffs for blog posts or other expressions critical of CSU and its
administration, and enforcing CSU’s Computer Usage and Cyberbullying Policies. (Id.
at 1-2).
In an affidavit supporting the motion, Beverly stated that CSU had taken a variety
of actions—adoption and enforcement of the policies, the cease-and-desist letter, and
efforts to shut down the blog, among others—that had “affected [his] activities and the
operations of the CSU Faculty Voice because of our concern that the school could take
retaliatory actions against us.” (Doc. 45, Beverly Aff. ¶ 13). As a result of this “climate
of fear,” Beverly registered an email address for the blog so that readers could contact
blog contributors without posting public comments and thereby “expos[e] themselves
online,” and could “protect their anonymity given their fear[s] of losing their jobs.” (Id.).
He also claimed that Defendants’ “efforts to censor the CSU Faculty Voice have had a
chilling effect on speech at the university generally.” (Id. ¶ 23). In support of that
allegation, he stated that, when he contacted fellow faculty members to offer
opportunities to publish articles on the blog, they expressed fear about having their
names associated with critical writings of the administration. (Id.).

2

The district judge referred the motion to this court for a Report and Recommendation,
but due to timing considerations, the district judge vacated the referral of the motion (Doc. 106)
and, in light of Defendants’ agreement to abstain from certain actions during the pendency of
this litigation, denied the motion without prejudice. (Doc. 112).

6

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 7 of 20 PageID #:1993

Defendants responded to the motion on March 4, 2015, stressing in part that “[a]ll
of the ‘detrimental acts’ Plaintiffs complain of occurred months ago, yet Plaintiffs
continue to publish their blog, continue to publish content just as, if not more, critical of
CSU, and are undeterred from their activity.” (Doc. 63, at 13). By way of example,
Defendants attached a March 4, 2015 blog post entitled “Musings on Another Rigged
Search: Who is on the Presidential Search Committee? Which ‘Executive’ Search Firm
Will Get the Handout of Taxpayer Dollars? Will Wayne Watson Essentially Succeed
Himself? All These Questions to be Answered Soon.” (Doc. 63-1, at 71).
During oral argument on April 7, 2015, the Court asked the parties to discuss the
extent to which Plaintiffs’ speech had been chilled (if at all) in light of the fact that they
continued to post to the CSU Faculty Voice. The Court ultimately instructed Plaintiffs to
submit supplemental affidavits explaining in more detail their claims of ongoing chilling
effects. In his supplemental affidavit, Beverly stated that, “since July 1, 2014, when the
Complaint in this action brought public light to the retaliatory tactics of the Watson
administration against the blog and speech critical of the administration, [the] number [of
individuals who had regularly posted to the blog] has been cut in half . . .” (Doc. 75,
Beverly Aff. 2 ¶ 5).
Similarly, Bionaz stated in his supplemental affidavit that he had “outlined [in this
case] steps taken by the administration of CSU President Wayne Watson to stifle free
speech on campus, including steps that appear to be retaliation against [him] and other
contributors to the CSU Faculty Voice . . . .” (Doc. 76, Bionaz Aff. 2 ¶ 3). Out of
“concern for the CSU administration retaliating against me . . . ,” Bionaz had “refrained
from publishing a number of pieces that would further demonstrate the misdeeds of the

7

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 8 of 20 PageID #:1994

Watson administration.” (Id. ¶ 7). Also, in the stories he did publish, he “refrained from
providing the names of the affected persons or even the specific number of persons to
whom [he] referred[]” “out of concern that more specificity would enable the
administration to determine from whom I had received information and to retaliate
against them.” (Id. ¶ 8).
D.

Plaintiffs’ Depositions

Not surprisingly in light of Plaintiffs’ affidavits and also the claims in this case,
Defendants sought discovery about the allegedly extensive chilling effects. At Beverly’s
October 1, 2015 deposition, defense counsel asked about occasions when Beverly felt
he could not post, or was hesitant to do so. Beverly explained that on those occasions,
he felt that posting “might identify and implicate . . . some sort of misdeed on [a
source’s] part” or that a source “might be retaliated against.” (Doc 36, at 24). He
estimated that between 2011 and 2015, he had declined to post on 15 to 20 occasions.
(Id. at 24-25). When Beverly was asked about the identity of those sources whom he
felt were vulnerable, Plaintiffs’ counsel objected on the basis of a reporter’s privilege.
(Id. at 25). Beverly then declined to identify the sources but described them as “[p]eople
who have access to information that aren’t tenured faculty.” (Id.). Shortly after, Beverly
stated that there were at least 15 to 20 “people,” and possibly 30 to 40, but he later
clarified that these figures were instances he withheld publication, rather than the
number of individual sources which he said ranged from 5 to 7. (See id. at 26-27, 29).
Defense counsel asked Beverly a second time to name the sources, excluding
those who were untenured faculty for whom he feared.
objected.

(Id. at 27).

Plaintiff’s counsel again

Beverly stated that naming them would “compromise their

8

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 9 of 20 PageID #:1995

confidentiality” and he was “not prepared to do that.” (Id.). He then proceeded to
explain his “process” for posting information as it related to the confidential sources.
The sources would “come to [him] and say, ‘Did you know . . . that something was
occurring?’ And [Beverly would] say, ‘Oh, that’s very curious.’ And they would say
something like, ‘But you can’t tell anybody, you can’t put this on the blog,’ because it
essentially would identify them as the source.” (Id. at 30). Since those sources “can’t
possibly see everything that goes on at the university,” however, Beverly would “get
three sources to validate [the information the confidential source provided.]” (Id.). His
FOIA requests in part sought to “substantiate [the] claim[s] made by [these] confidential
informant[s].” (Id.). So, although the confidential sources said they feared that the
information “[c]ould be traced back to them[,]” Beverly might post it later so long as he
“could corroborate it without them being identified.” (Id. at 31). This process entailed
some delay, and sometimes he would not post the information. (Id. at 32). Beverly
cited “absence of corroboration” or the lack of salience—“old news as it were”—as the
usual reasons for not posting. (Id.).
Bionaz similarly spoke of chilling effects during his deposition on September 18,
2015.

Defense counsel asked him about the contributors to the blog (i.e., those

persons who had the ability to publish or post articles to it), and Plaintiffs’ counsel
objected on the basis of a reporter’s privilege to the extent that any contributors were
confidential sources. (Id. at 38-39). Bionaz then named several individuals (each of
whom are openly involved with the blog): Beverly, “Ann Kuzdale, who is a colleague in
the history department; Doug Thomson, who is in criminal justice, Louis Poncho
McFarland; Lionel Kimball. . . . I think Laurie Walter has posting privileges. . . . Steve

9

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 10 of 20 PageID #:1996

Rowe, also.” (Id. at 39-40). Defense counsel then asked if Bionaz had ever posted on
behalf of someone who lacked posting privileges, and Bionaz indicated that he had
“posted on behalf of . . . Janet Halpin[,]” a fellow faculty member, and also a
“nontenured faculty member.”

(Id. at 40-41).

When Bionaz was asked about the

identity of the untenured faculty member, Plaintiffs’ counsel again “object[ed] to the
extent that this is a confidential source.” (Id. at 41). Bionaz stated that he considered
this person confidential.

(Id.).

He later explained that this source had shared

information regarding “how the university was being run,” and although he posted that
information under his own name—while noting that it was from another faculty
member—he did not identify her in the post (and would not during his testimony)
because the faculty member “feared retaliation, and the post, as I recall, would have
potentially exposed that person to what she feared would take place.” (Id. at 43).
Defense counsel made additional inquiries of Bionaz about blog contributors on
whose behalf he had posted, and Bionaz stated that “[t]here may have been a couple
people that are outside the university and one of whom I believe is an adjunct faculty
member at the City Colleges.” (Id. at 42). When Defense counsel asked for the adjunct
professor’s identity, Plaintiffs’ counsel repeated his objection and instruction not to
answer, and Bionaz confirmed that he considered each of these latter sources
confidential. (Id. at 42). He did so for “several reasons,” including that the information
they provided “would jeopardize their jobs” and “[t]hey’ve asked [him] to keep this
information confidential.” (Id.). The City College source, in particular, “expressed fear
that if [his or her] identity became public[,] . . . there would be repercussions.” (Id. at
44).

10

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 11 of 20 PageID #:1997

DISCUSSION
A.

Qualified Reporter’s Privilege

Plaintiffs argue that they should not have to disclose the identities of their
confidential sources because the information is protected by a qualified reporter’s
privilege. They first suggest that this Court already recognized such a privilege when it
denied a previous motion to compel production of a single document identified on their
privilege log as ID027043, an email that Bionaz received from a confidential source on
February 19, 2014. (Doc. 124; Doc. 136, at 1). This is inaccurate. In an oral ruling, the
Court expressly “agree[d] that there’s no reporter’s privilege” available in the Seventh
Circuit, but determined based on an in camera review that the document in question
had “minimal probative value to defendants’ arguments,” so declined to order production
of the document that would reveal a third-party’s identity. (Doc. 130, at 2). Given the
parties’ dispute as to the contours of that ruling, the Court provides further explanation
here. (Id.).
Though several jurisdictions have recognized a qualified reporter’s privilege, the
Seventh Circuit is not one of them.

The court addressed the issue in McKevitt v.

Pallasch, 339 F.3d 530 (7th Cir. 2003), where the plaintiff was being prosecuted in
Ireland on terrorism and related charges. He secured an order from the district court
enforcing a subpoena to journalists for their tape recordings of a key prosecution
witness, which he believed would be useful for his cross-examination of the witness at
trial.

The journalists moved for a stay of the district court’s order enforcing the

subpoena. Id. at 531. The Seventh Circuit declined to issue a stay on the grounds that
the First Amendment offers no protection to newsgatherers by which they may refuse to

11

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 12 of 20 PageID #:1998

comply with otherwise applicable discovery requests. Id. at 532-33. Even if it was
“obvious that the newsgathering and reporting activities of the press are inhibited when
a reporter cannot assure a confidential source of confidentiality[,]” id. at 532, the court
saw no reason “why there need to be special criteria merely because the possessor of
the documents or other evidence sought is a journalist.”

Id. at 533.

As a result,

discoverability of the tapes had to be evaluated according to whether the third-party
subpoena was “reasonable in the circumstances, which is the general criterion for
judicial review of subpoenas.” Id.
In reaching this conclusion, the court acknowledged the “large number of cases”
from sister circuits that recognize a qualified reporter’s privilege, but characterized those
holdings as “rather surprising[] in light of Branzburg [v. Hayes, 408 U.S. 665 (1972)],”
where the Supreme Court provided a lengthy analysis explaining why it declined to
recognize such a privilege. McKevitt, 339 F.3d at 531-32. In the Seventh Circuit’s view,
the courts that had reached contrary rulings had either ignored Branzburg entirely,
treated the majority opinion as only a plurality decision, or “audaciously” read Justice
Powell’s concurring opinion as creating a privilege (in effect, elevating his concurrence’s
suggestion that a privilege be evaluated on a case-by-case basis to a majority opinion
on the point due to the strongly pro-privilege views of the four dissenting Justices). With
respect to this latter outcome, the court explained that it overlooked the fact that Justice
Powell joined Justice White’s five-member majority opinion, which soundly rejected the
claim of privilege. See id. For these reasons, the Seventh Circuit stated that cases
finding a privilege “may be skating on thin ice[,]” id. at 533, and later cited McKevitt in
dictum for the proposition that “[t]here isn’t even a reporter’s privilege in federal cases[.]”

12

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 13 of 20 PageID #:1999

U.S. Dep’t of Educ. v. National Collegiate Athletic Ass’n, 481 F.3d 936, 938 (7th Cir.
2007).
Despite these clear admonitions from the Seventh Circuit, Plaintiffs rely on
decisions from other jurisdictions to support their privilege claim, primarily the D.C.
Circuit’s opinion in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981). In doing so, Plaintiffs
argue that McKevitt stands only for the narrow proposition that no qualified reporter’s
privilege exists when a source is not in fact confidential and there is a strong,
countervailing interest for disclosure of the information, such as the federal interest in
cooperating with a foreign nation’s criminal proceeding at issue in McKevitt. (Doc. 138,
at 7-8). Stated differently, Plaintiffs urge that the McKevitt decision is limited to its
particular facts, and thus offers this Court no counsel in a civil case such as this one,
where the information that Defendants seek is the undisclosed identities of Plaintiffs’
sources.
The problem for Plaintiffs is that nothing in McKevitt suggests that its holding is
so narrow. The court did contemplate, at least superficially, that a different result might
be appropriate when confidential sources are at issue, taking care to point out that,
unlike Branzburg, there was “no conceivable interest in confidentiality in th[e] case” at
hand because the identity of the source (the prosecution witness) was already known
and the sole question was whether the journalists’ tapes of his statements should be
produced.

339 F.3d at 532.

The court also stated, however, that facts related to

disclosure of a source or a journalist’s confidential information are “consideration[s] that
a district court might properly consider in deciding on a challenge to a subpoena . . .”
Id. at 535. In other words, concerns about confidentiality enter the analysis only under

13

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 14 of 20 PageID #:2000

the relevant legal standard and do not establish a freestanding privilege.

Notably,

though McKevitt did not involve a confidential source, the Branzburg case did and the
Supreme Court still was not moved to adopt the privilege Plaintiffs seek here.
Instructive on this point is Davis v. City of Springfield, Ill., No. 04-3168, 2009 WL
910204 (C.D. Ill. Apr. 1, 2009), aff’d, 2009 WL 1161619 (C.D. Ill. Apr. 28, 2009), where
the court considered a subpoena to a third-party journalist under Federal Rule of Civil
Procedure 45. Finding no reporter’s privilege available in light of McKevitt, the court
determined whether to enforce the subpoena by applying the Seventh Circuit’s “relative
hardship test” for analyzing burden under Rule 45. Id. at *3. This involved considering
whether “the burden of compliance with [the] subpoena would exceed the benefit of
production of the material sought by it.” Id. (citing Nw. Mem. Hosp. v. Ashcroft, 362
F.3d 923, 927 (7th Cir. 2004)).

The court found that the journalist’s interest in

maintaining the confidentiality of her sources (along with other factors, such as
availability of the information by other means) rendered the burden of production greater
than the benefit. Id. at *4-5. Adhering to the approach counseled in McKevitt, the court
made clear that the confidential nature of the source was not dispositive, but was “one
factor that clearly increase[d] the burden of production” in that case. Id. at *3.
In the absence of a per se rule that a confidential source must be protected, each
case turns on the specific facts presented. For this reason, the Court need not discuss
at any length the various decisions Plaintiffs cite from this district where subpoenas to
third-party journalists were quashed, thereby relieving journalists of an obligation to
disclose confidential materials or a source’s identity.

(See Doc. 138, at 8-9, 13

(discussing Solaia Tech., LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL

14

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 15 of 20 PageID #:2001

22597611, at *2 (N.D. Ill. Nov. 10, 2003); Hobley v. Burge, 223 F.R.D. 499, 504-05
(N.D. Ill. 2004); Patterson v. Burge, No. 03 C 4433, 2005 WL 43240, at *3 (N.D. Ill. Jan.
6, 2005)). None of these cases held that the subpoenas should be quashed on the
basis of a privilege, and since “each turn[] on the peculiar facts that were presented[]” to
the courts for their Rule 45 analyses, they are not “particularly helpful.” Taylor v. City of
Chicago, No. 14 C 737, 2015 WL 6561437, at *10-11 (N.D. Ill. Oct. 29, 2015). It is also
worth noting that those cases involved subpoenas to third-party journalists, not
discovery to the parties who initiated the litigation and seek to recover damages.
In sum, Plaintiffs’ confidential sources are not protected by a reporter’s privilege,
and their identities must be disclosed unless doing so violates the legal rules applicable
to all motions to compel such discovery.3
B.

Relevance

The standard for determining whether parties to a lawsuit must produce evidence
is found in Federal Rule of Civil Procedure 26.4 Rule 26(b) provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim

3

Although Plaintiffs do not develop arguments about other sources of a privilege, the
Court nevertheless notes the following in light of their brief’s reference to the Illinois statutory
reporter’s privilege. First, there are no alternate bases under federal law for the existence of the
privilege that Plaintiffs claim. As this Court so recently observed in Taylor, courts in this district
that have considered and addressed the issue have consistently found that there are no other
sources of a privilege. 2015 WL 6561437, at *2; Wilson v. O’Brien, No. 07 C 3994, 2009 WL
763785, at *5 (N.D. Ill. Mar. 20, 2009) (“[A]fter sifting through the jurisprudential remains of
Branzburg and its progeny, [the court] cannot locate any legal artifacts indicating the existence
of the federal reporter’s privilege independent of the First Amendment[.]”). Second, the Illinois
Reporter’s Privilege statute, 735 ILCS 5/8-901 et seq., is a state-law privilege that, per McKevitt,
is “not ‘legally applicable’ in federal-question cases, like this one.” 339 F.3d at 533 (citing FED.
R. EVID. 501).
4
Plaintiffs’ suggestion that a reasonableness standard applies to the discovery of
information from putative journalists even outside the context of a Rule 45 subpoena is contrary
to McKevitt in that it would require the use of “special criteria [to resolve a discovery dispute]
merely because the possessor of the documents or other evidence sought is a journalist.” 339
F.3d at 533.

15

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 16 of 20 PageID #:2002

or defense . . .”

FED. R. CIV. P. 26(b)(1).

There is little doubt that the discovery

Defendants seek is relevant, as details about the chilling of Plaintiffs’ speech—
specifically, whether they were chilled, to what extent, and how—is at the heart of their
retaliation claims. Plaintiffs have chosen to raise the issue of chilling repeatedly in their
complaint, (see, e.g., Doc. 1 ¶¶ 2, 4, 34, 41, 44, 88, 89, 100) (alleging that Defendants
have tried to “silence,” “restrict” and “censor” Plaintiffs’ speech), and have taken the
position that several sources provided information they declined to communicate to blog
readers out of fear of retaliation. Yet as Defendants correctly observe, Plaintiffs now
“refuse to identify the very individuals who could provide direct evidence and testimony
as to these allegations.” (Doc. 136, at 4).
Plaintiffs insist that the sources’ identities are irrelevant because that information
has no bearing on whether and how Plaintiffs themselves were chilled—a matter about
which they claim to have “provided illustrative testimony” at their depositions—and also
because the as-applied First Amendment challenge does not assert claims on behalf of
the sources. (Doc. 138, at 10-12). Consistent with this view, Plaintiffs have proposed a
stipulation they believe “addresses Defendants’ concerns that they have been unable to
learn the identities of the sources and take discovery from those individuals, while
protecting the sources’ identities.” (Doc. 154, at 6-7).
First, Plaintiffs will agree to limit their testimony to the following:
1.
Plaintiffs’ method for using information obtained from confidential
sources, in particular, Plaintiffs’ practice of verifying confidential tips with
publicly available documents and on-the-record sources before
publication.
2.
Plaintiffs’ subjective belief, based on their experiences with the
CSU administration, that revealing sources’ identities could expose

16

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 17 of 20 PageID #:2003

sources to retaliation from CSU administrators like Defendants Watson
and Cage.
(Id. at 6) (emphasis in original).

In addition, Plaintiffs further agree to preclude

testimony about the following matters:
1.

The state of mind of Plaintiffs’ confidential sources.

2.

Any statements made by Plaintiffs’ confidential sources.

3.
Whether Plaintiffs’ sources asked to be treated as confidential
sources.
4.
Whether Plaintiffs believed their confidential sources sought
confidentiality because the sources feared retaliation from Defendants.
5.
The number of confidential sources Plaintiffs relied upon or how
often their reporting included information from confidential sources.
(Id.).
This proposal, and the arguments on which it is based, overlooks several
important points. First and foremost, Plaintiffs’ theory of chilling presumes the existence
of confidential sources that Plaintiffs claim they were afraid to expose. Defendants have
no idea whether Plaintiffs actually received stories from confidential sources; cannot
confirm whether Plaintiffs in fact declined to publish some of those stories and, if so,
which ones; and have no way to verify whether the stories were withheld due to fear for
the sources as opposed to some other reason (perhaps, in Beverly’s words, because it
became “old news”). Contrary to Plaintiffs’ suggestion, the testimony provided to date is
far from “illustrative” on these points, consisting entirely of conclusory assertions of
chilling with no supporting factual details (let alone corroboration for those details).
In addition, without speaking to the confidential sources, Defendants cannot test
whether Plaintiffs altered their stated methods for corroborating tips in response to

17

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 18 of 20 PageID #:2004

Defendants’ alleged retaliatory actions.

Beverly testified that he declined to post

information that could disclose the identities of his confidential sources as far back as
2011, well before Defendants sent the November 11, 2013 cease and desist letter that
set this lawsuit in motion. Defendants should be allowed to determine (independently
from Plaintiffs’ own assertions) how Plaintiffs handled confidential sources in 2011
compared with late 2013 and beyond.
Plaintiffs argue that Defendants should instead talk to other known contributors
“whose names are publicly available on the blog.” (Doc. 138, at 11). As Defendants
note, however, none of those known contributors claims that their speech was chilled,
and Plaintiffs do not contend that they declined to publish stories from those individuals
for fear of retaliation. (Doc. 160, at 5 n.2). In addition, Plaintiffs themselves did not
identify those individuals as knowledgeable witnesses in their own Rule 26(a)
disclosures, and there is nothing to suggest that they have, or will be willing to disclose
pertinent information about Plaintiffs’ confidential sources.

Deposing the known

contributors is thus not an alternate means of obtaining the discovery in question.
Plaintiffs make a brief argument that the burden of disclosure outweighs the
benefit, referencing “Defendants’ campaign to silence the CSU Faculty Voice . . . for the
sole purpose of shutting down the blog and otherwise chilling Plaintiffs . . . [,]” and
urging that “[e]xposure of Plaintiffs’ confidential sources will result in further chilling
impact . . .” (Doc. 138, at 14). In essence, Plaintiffs ask Defendants to simply accept as
true an essential fact they must prove, the chilling of their speech, and prohibit
discovery on the basis that there would be more of said chilling were they required to
provide even minimal support for their underlying allegations. Of course, that is not how

18

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 19 of 20 PageID #:2005

discovery works. Plaintiffs cannot take the stand at trial and testify that a handful of
fellow CSU employees provided confidential information on multiple occasions that they
felt obliged to withhold out of fear of reprisal, while at the same time refusing to provide
any details that would allow Defendants to obtain discovery or cross-examine them
about those contentions. Defendants understandably wish to explore this given that
Plaintiffs’ attacks against the university have continued unabated with no evidence of
any chilling effect.5
To summarize, the information Defendants seek is relevant to this litigation. Only
Plaintiffs know of the sources’ identities, and Defendants cannot discover facts about
the alleged chilling, including whether it actually occurred, without also knowing that
information. Plaintiffs have not demonstrated that the burden of production outweighs
the likely benefit, and so Defendants’ motion is granted. Plaintiffs are ordered to answer
the questions to which they claimed a reporter’s privilege at their respective depositions,
or to accept Defendants’ proposal and stipulate that “they will not rely on any
interactions with ‘confidential sources’ for any purpose within their case[,] or that their
speech was not in fact chilled by any actions of the Defendants.” (Doc. 160, at 6).
CONCLUSION
For the reasons stated above, Defendants’ Supplement to their Motion to Compel
(Doc. 136) is granted.
5

See, e.g., “Another Case of Retaliation at Chicago State: The Watson Administration
Closes the HIV-AIDS Research Institute to Punish its Director for Standing Up to Them”
(2/27/15); “Use Them Then Screw Them” (4/12/15); “The Chicago State Administration: Pigs at
the Trough” (4/29/15); “Our Orwellian Administration and Its Data: A Prediction for Fall 2015
Enrollment” (5/4/15); “Breaking News: It’s Raining Vice Presidents Here at Chicago State”
(5/4/15); “How Does the Smallest School in the Illinois Public University System Have So Many
‘Administrators’? Ask Wayne Watson and the Chicago State Board” (5/24/15); “Putting Lipstick
on a Pig: Propaganda and Truth in Chicago State’s ‘Factbook’” (6/11/15); “More New Vice
Presidents at Cesspool State” (6/19/15).

19

Case: 1:14-cv-04970 Document #: 170 Filed: 07/07/16 Page 20 of 20 PageID #:2006

ENTER:

Dated: July 7, 2016

__________________________
SHEILA FINNEGAN
United States Magistrate Judge

20