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Fighting the Chills

The military court may rule on the Post subpoena within days, and Moffeit is cautiously optimistic that it will be tossed out. Even if it is, however, Kelley expects that challenges to reporters' privileges under the First Amendment will continue until definitive guidelines are established. "I think it's close to inevitable that this issue will have to come before the Supreme Court at some point," he says.

In the meantime, sexual-assault allegations keep cropping up at the Air Force Academy. On November 29, for instance, the Post reported about a preliminary hearing at the academy in which a physical therapist from an on-base hospital conceded that she was too drunk to remember if an AFA senior she'd accused of rape had forced her to have sex. Moffeit fears that if women like this one think off-the-record remarks could wind up in open court, they'll be more likely to keep quiet. On the contrary, he says, "If we stick by our guns and make it known that we're going to resist moves like this subpoena, it'll help our profession and how we're seen, especially by other rape victims who might want to come forward."

If he wins this scrap, Moffeit deserves a real vacation.

And now for a moment of irony: Like Miles Moffeit, I've been served with a subpoena seeking access to my journalistic work product -- but in other respects, our experiences were very different. You see, the Denver Post, which is trying to suppress the subpoena against Moffeit, was actually behind the one aimed at me. Seriously.

In a November 2002 column, I wrote about an incident at the Post in which editor Greg Moore responded to a question about an outgoing assistant city editor by saying, "I wasn't hired to move manure around the barnyard." The next June, in a related item, I reported that the ACE in question, Arnie Rosenberg, had filed a lawsuit against Moore and the Post over the impact this colloquialism had on him and his career. Then, on December 5, I was given a subpoena under the auspices of attorneys representing the Post. I was ordered to offer a deposition one week later and to bring with me "all documents, correspondence, e-mails, voicemails, or tangible things" that pertained to the earlier columns.

To get such a subpoena under any circumstances would have been unpleasant -- but for it to come from a newspaper was positively appalling. For that reason, I happily signed an affidavit assembled by Westword's attorneys declining to comply with the subpoena "pursuant to the First Amendment to the United States Constitution and to the Colorado shield law." In the end, the Post's lawyers backed off, releasing me from the subpoena on December 11 -- and now, as witnessed by their defense of Moffeit, they're back to championing press rights again.

Welcome to the club.

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