Subpoenas Seem SLAPPish
The Innocence Project, run out of Northwestern’s Medill School of Journalism, investigates potential wrongful convictions. The student investigations there have led to the release of eleven wrongfully convicted people. Recently, the Project announced on its website the results of a three-year investigation that indicated that a man who has spent thirty-one years in prison for murder may not have committed that crime.
Anita Alvarez justifies the request by arguing that prosecutors must investigate the students’ motivations. She speculates that perhaps inappropriate grading incentives based on finding evidence of innocence might exist, which would be relevant to determining whether there should be a new trial.
Prosecutors also argue that the Project’s students and professors are not protected by Illinois’ reporter’s shield law. In Illinois, journalists’ records are largely protected, but if they are not considered journalists, the students’ and professors’ records are subject to subpoena.
Although this subpoena is not a classic Strategic Lawsuit Against Public Participation (SLAPP), it has elements of a SLAPP. SLAPPs are groundless lawsuits that arise from the exercise of First Amendment rights. Such lawsuits chill civic engagement and silence important speech.
Like a SLAPP, the Cook’s County prosecutors’ subpoena makes use of the courts in a way that may chill civic participation. In this case, the chilled activity drills down to an examination of the health and functioning of our justice system at the most basic level.