The Air Force deserves praise for its handling of the Moffeit matter in at least one respect: Instead of dispatching a representative of the service to hand-deliver the ultimatum, the judge advocate who issued the subpoena sent it to the Post by fax, at considerable savings to our nation's taxpayers. Yet the demand itself is another in a slew of attacks on rights that most journalists believe are constitutionally protected -- and the chilling effects are being felt across the country. Just last month, Rhode Island TV reporter Jim Taricani received a criminal-contempt-of-court conviction for refusing to tell a federal judge who gave him an incendiary FBI videotape. Taricani may wind up in jail as a result.
Attorney Tom Kelley hopes to prevent Moffeit from suffering the same fate; he's filed a motion to quash the "unreasonable and oppressive" subpoena on behalf of the Post. Nevertheless, he understands that a victory in this case won't mark the battle's end. As he puts it, "The assault on a reporter's privileges under the First Amendment is proceeding apace."
The media first put the Air Force's handling of sexual-assault allegations under its microscope in January 2003, when former Westword reporter Julie Jargon unleashed "The War Within." The article told the stories of several young women at the Air Force Academy who were either ignored or punished after telling superiors that fellow cadets had raped them. Subsequent broadcasts on Channel 7 dealing with these topics caused an even greater stir, attracting the attention of news outlets from coast to coast. The Post was one of many publications to enter the ensuing fray, and the paper advanced the story considerably in November 2003 via "Betrayal in the Ranks," attributed to Moffeit and colleague Amy Herdy. The three-part series presented compelling evidence that problems of the sort uncovered at the Academy existed at military bases affiliated with the Air Force and other branches of the service.
In the context of researching "Betrayal," Moffeit and Herdy conducted a nationwide survey of rape-crisis centers that shared a zip code with military bases. The scribes soon discovered that more than two dozen women from Sheppard Air Force Base had sought counseling from a nearby civilian facility over the course of a year -- a statistic that appeared in the first paragraph of "Rape Cases Rise at Texas Air Base Group," published by the Post on February 11. A month later, in a piece headlined "Delays on Rape-Case Evidence Bring New Scrutiny to Military," Moffeit and Herdy followed up with a feature about eighteen-year-old Leah Kaelin, who said she was raped by four service members while stationed at Sheppard. The account included information about laboratory specimens related to Kaelin that had been in limbo for eight months, only to surface after the appearance of the Post's February exposé, not to mention a request for congressional hearings made by Texas senator Kay Bailey Hutchison. What a remarkable coincidence.
Air Force authorities eventually charged Airman Basic Matthew Monroe with involvement in the assault against Kaelin and scheduled a court martial against him. On November 17, shortly before the case was slated to be heard, Air Force captain Sandra J. Morris, Monroe's legal representative, faxed the aforementioned subpoena to the Post courtesy of Jeanette Chavez, the paper's managing editor/administration. Morris asked that the Post ship the material gathered by Moffeit and Herdy to Texas by November 22.
The package the Post sent around that time wasn't exactly what Morris ordered. Attorney Kelley and his associates submitted a 22-page document to the United States Air Force Judiciary Central Court explaining that the paper wouldn't voluntarily comply with "the defendant's 'fishing expedition'" -- a request "based on nothing more than a 'mere hope' that the Denver Post may have materials which may possibly be of evidentiary value at trial."
In addition, Moffeit contributed an affidavit that eloquently described what was at stake from his viewpoint. "By the nature of their work, journalists collect vast amounts of information about matters of public concern," he testified. "Because journalists routinely report on matters involving court proceedings, they will be frequently called into court to act as professional witnesses, or otherwise assist parties eager to exploit journalistic resource materials -- all to the detriment of the autonomy and vigor of the press."
On a more personal level, Moffeit wants to make things easier on Kaelin and other individuals in her situation. "What I typically do with women who are bringing rape accusations is to go over very carefully what's going to appear in print, because they've already been through so much trauma," he says. "Retraumatizing sources through journalism is a really prevalent practice, unfortunately, because most journalists don't know how to deal with rape victims." He considers "the comments she gave me that she didn't want to go public" to be "sacred." For that reason, he adds, "I can't imagine spilling open my notebook to a governmental body that might expose her to ridicule and invasion of privacy."
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.